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Congressional Response to COVID-19: FMLA and Paid Leave

Congress passed the Families First Coronavirus Response Act on March 18, 2020 and the President signed the legislation shortly thereafter. The provisions below become effective within 15 days. We will provide further guidance on the details of the Act as they are released in the coming days. The Act contains the following provisions that will affect a business’s employees directly:

The Family Medical Leave Act Expansion

The following modifies the rules under the expansion of FMLA due to the COVID-19 emergency and does not change the other sections of the Act:

• Employers* with “fewer than 500 employees” in 20 or more calendar weeks in 2020 or 2019 are now subject to the FMLA extension.

• Eligible employees** are now those that were employed for 30 calendar days or more.

• Qualifying need for leave now means an employee who is unable to work or telework due to the need to care for a child under the age of 18 years old if such child’s elementary or secondary school, or place of care is closed or a childcare provider is unavailable due to a COVID-19 emergency declared by a Federal, State, or local authority.

Leave: 1. The first 10 days of leave under the expansion may be unpaid leave; 2. If an employee has accrued vacation, personal, medical, or sick leave he or she may substitute it for unpaid leave; 3. After an employee has exhausted the first 10 days of leave, an employer must provide paid leave for each additional day of leave taken; 4. These payments are set at two-thirds of the employee’s normal pay at the normal scheduling period, but cannot exceed $200/day or $10,000 aggregate.

Return: employers with fewer than 25 employees may not be required to put an employee on leave back in his or her position that no longer exists due to the health emergency. Several requirements apply.

• Tax relief may be available for payment made pursuant to the expansion.

*Regulations may be passed to exempt small businesses with fewer than 50 employees if compliance would jeopardize the business as a going concern.

**Regulations may be passed that exclude health care providers and emergency responders and those employers may elect to exclude employees from the definition without further regulations.

Emergency Paid Sick Leave

The following modifies established rules for paid sick leave due to the COVID-19 emergency:

• Employers* who employ “fewer than 500 employees” are subject to the requirements.

• Eligible employees** are all employees of an employer, regardless of the amount of time employed.

• Qualifying need for leave means an employee who is unable to work or telework due to the following: 1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19; 2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; 3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis; 4. The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2); 5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; 6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Leave: 1. Full-Time employees shall receive 80 hours of paid leave; 2. Part-Time employees shall receive leave equal to the number of hours usually worked in a two-week period; 3. Compensation for (1)-(3) above shall be at the regular rate of pay, but shall not exceed $511 per day and $5,110 in the aggregate, and compensation for (4)-(6) above shall be at the rate of two-thirds of normal pay, but shall not exceed $200 per day and $2,000 in the aggregate.

Employers may not: 1. Require an employee to find a person to cover their hours; 2. Require an employee to use other paid leave; 3. Retaliate against an employee for seeking paid sick leave; 4. To the extent their current policies provide more benefits or leave, substitute their policies with this Act.

• A posted notice is required under the Act, but the Secretary of Labor will release examples before compliance is required.

*Regulations may be passed to exempt small businesses with fewer than 50 employees if compliance would jeopardize the business as a going concern.

** Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Each situation is different and you should contact our office or your legal counsel for specific guidance. Should you have any questions concerning the above, particularly when leave starts and stops, and calculating the amount of leave and pay required by the act, please do not hesitate to email me directly or call 717.291.1700. More laws, regulations, and guidance will be issued to provide greater detail to employers on how they are to enact the requirements of the new Act.

Click here for additional information on how GKH is responding to the current COVID-19 crisis.

Be well. We will get through this together.


DISCLAIMER: The foregoing does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about how this relates to your specific situation.

Prepared by GKH attorney Jeff Worley. Attorney Worley practices in the areas of employment law, business law and general litigation.