Families First Coronavirus 
Response Act Fact Sheet

Summary 

Late in the evening of March 19, 2020, the Senate passed (and President Trump signed into law) the Families First Coronavirus Response Act (the “Act”), which itself is a collection of various acts designed to address pressing Coronavirus-related emergencies. Among the acts contained within the Act are the Emergency Family and Medical Leave Expansion Act (the “FMLA Act”) and the Emergency Paid Sick Leave Act (the “Sick Leave Act”), each of which impacts most employers who have fewer than 500 employees.

Under the FMLA Act, through the end of the year, employers who employ fewer than 500 employees are now required to give employees up to twelve weeks of paid leave if the employee cannot work due to the fact that their child’s school or daycare has closed due to COVID-19.

Under the Sick Leave Act, through the end of the year, employers who employ fewer than 500 employees are now required to give employees two weeks of paid sick leave if the employee is forced to quarantine, is recommended to self-quarantine, or comes down with COVID-19 like symptoms, or is forced to take off work to care for a person who is quarantined or sick with COVID-19 symptoms, or is forced take off work to care for a child whose school or daycare has closed.

Expansion of FMLA Coverage for COVID-19

The FMLA generally requires employers who employ 50 or more employees to grant eligible employees (i.e., employees who have worked for the employer for at least a year and worked at least 1,250 hours) twelve weeks of unpaid leave for a qualifying event, such as the employee's own serious health condition, the birth or adoption of a new child, or to care for a seriously ill family member. Employees taking FMLA leave are also generally entitled to be restored to their previous position once they return from leave. The FMLA Act temporarily expands the FMLA by creating new provisions related to COVID-19.

Who is Covered?

The new COVID-19 provisions:

• Apply to all employers who employ fewer than 500 employees, i.e., employers not otherwise subject to the FMLA are now subject to the new COVID-19 provisions of the FMLA.

• Apply to any employee who has been on the job at least 30 days.

What is Covered?

The new COVID-19 provisions grant up to 12 weeks of job-protected FMLA leave to any employee who is unable to work (whether in person or remotely) due to their need to care for a son or daughter whose school or daycare is closed due to COVID-19 precautions.

New Paid Leave Requirements

Under the new COVID-19 provision:

• The first 10 days of COVID-19 leave may be unpaid, but employees have the right to use any accrued to use accrued vacation days, personal leave, or other available paid leave for the unpaid time off.

• For the remainder of the 12-week leave period, the employee must be paid at least two-thirds of their normal pay rate, capped at $200.00 per day and $10,000.00 in total.

Exceptions

There are two exceptions to the new COVID-19 FMLA provisions:

• Employers who employee health care provider employees or emergency responders are permitted to elect out of providing paid family leave to these employees.

• The Department of Labor may exempt, by regulation, employers of less than 50 employees if the requirement to provide leave would jeopardize the viability of the business. However, no such regulations regarding the exemption have yet been implemented.

Safe Harbor

Businesses not previously subject to the FMLA (i.e., businesses with less than 50 employees) may not be sued directly by employees for violating the new COVID-19 provisions; however, the Department of Labor may still pursue such businesses either administratively or civilly to enforce the new provisions and recover any unpaid wages on behalf of any affected employees. The inability to be sued by an employee obviously is an important provision.

Job Restoration

Like with the FMLA, under the new COVID-19 FMLA provisions employers are generally required to restore any employees taking such leave to their same or equivalent job upon their return. However, the new COVID-19 FMLA provisions exempt employers who employ fewer than 25 employees from this requirement if the employee’s position no longer exists due to the economic impact of COVID-19. Such employers are still required, however, to make reasonable attempts to return the employee to an equivalent position and are required to make efforts to return the employee to work for up to a year following the employee’s leave.

Tax Credits

To assist businesses with paying the paid leave now mandated by the FMLA Act, the Act provides employers with a refundable tax credit against the employer’s portion of FICA taxes in an amount equal to the amounts paid by the employer as COVID-19 FMLA leave (up to the FMLA Act’s caps). To assist businesses with immediate cash flow, the Act requires the Secretary of the Treasury to implement regulations which permit an employer to immediately access its portion of the FICA tax without failure-to-deposit penalties, i.e.,an employer is entitled to have immediate access to these monies instead of being required to wait until after taxes are filed.

Effective Dates

The new FMLA provisions take effect April 2, 2020 and expire on December 31, 2020.

New Sick Leave Requirements

The Act implements a new Emergency Paid Sick Leave Act (the “Sick Leave Act”), which generally requires employers to provide COVID-19 impacted employees with at least two weeks of paid sick leave.

Covered Employers

Like with the new COVID-19 FMLA provisions, any employer who employs fewer than 500 employees is subject to the new Sick Leave Act.

Covered Employees

Employees who are unable to work (whether in person or remotely) due to any of the following reasons are covered:

• The employee is subject to an official quarantine or isolation order.

• The employee has been advised by a health care provider to self-quarantine.

• The employee is caring for another individual who is subject to an official quarantine or isolation order or who has been advised to self-quarantine.

• The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

• The employee is caring for a son or daughter whose school or daycare has closed due to COVID-19 precautions.

Any employee who has worked for the employer for any period of time is covered, i.e., there is no minimum period of employment before the employee is entitled to the paid sick leave benefit. The sick leave benefit is available for immediate use starting April 2, 2020.

Amount of Sick Leave

Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to paid sick leave based on the number of hours they work, on average, during a two week period. For recently hired part-time employees, the employee is entitled to be paid based on the number of hours it was reasonably expected that they would work when hired.

Calculating Pay

Paid sick leave is calculated as follows:

• For an employee who is unable to work due to being subject to an official quarantine or isolation order or due to
experiencing COVID-19 symptoms, the employee is entitled to be paid sick leave at his or her regular rate of
compensation subject to a cap of $511.00 per day or $5,110.00 in the aggregate.

• For an employee who is unable to work due to caring for another individual subject to an official quarantine or isolation order, due to caring for another individual who is experiencing COVID-19 symptoms, or due to caring for a son or daughter whose school or daycare has closed due to COVID-19 precautions, the employee is entitled to be paid at 2/3rds his or her regular rate of pay subject to a cap of $200.00 per day or $2,000.00 in the aggregate.

Relation to Other Sick Leave

The new two week sick leave requirement of the Sick Leave Act are in addition to any other vacation or sick leave offered by the employer. Employers are prohibited from requiring an employee to exhaust other sick leave or paid leave prior to permitting the employee to take the sick leave granted by the Sick Leave Act.