Coronavirus response act takes effect April 1, expands FMLA and paid sick leave requirements

The Families First Coronavirus Response Act, phase II, which will provide paid leave, food assistance and tax credits to individuals in the U.S. affected by the novel coronavirus, passed the Senate March 18 and was signed into law the same day by President Trump.

Beginning April 1, H.R. 6201 will require employers with fewer than 500 employees, with some exceptions, to provide 12 weeks of protected leave to eligible employees who are unable to work, including telework, because their child’s school or place of care has been closed or their child care provider is unavailable due to a public health emergency. The new requirement, which amends the Family and Medical Leave Act, will expire Dec. 31. The 500-employee threshold under the emergency FMLA is a significant change from the current FMLA threshold of 50 or more employees.

Health care providers, which may include dentists, and small businesses with fewer than 50 employees, may be exempt from the new provision. Exemptions would be granted by the Secretary of Labor, who will likely communicate those guidelines, and how businesses may request an exemption, prior to the law taking effect on April 1.

Covered employees and pay calculation under emergency FMLA

Any employee who has been employed for at least 30 days is eligible for the new leave entitlement under the Act ― a significant change from the required 12 months and minimum 1,250 aggregate hours under the current law.

The first two weeks of the employee’s “emergency” FMLA leave may consist of unpaid leave, but the employee may choose to substitute any accrued, unused vacation, PTO or paid sick leave benefits for the unpaid leave. The remainder of emergency FMLA pay must be provided by the employer. Therefore, a covered employer must provide at least 10 weeks of qualifying paid emergency FMLA leave to a covered employee.

The remaining 10 weeks of paid leave must be at least two-thirds of an employee’s regular rate of pay of the last six months and reflect the number of hours an employee would otherwise be normally scheduled to work. The paid leave is capped, however, at $200 per day and $10,000 in the aggregate.

Emergency paid sick leave

Also beginning April 1, all employees are eligible for paid sick leave under the Emergency Paid Sick Leave Act, regardless of the length of time they have been employed. Employees are not required to first use other available paid leave before using paid sick leave under the Act. This leave is in addition to any paid sick leave, vacation or PTO currently provided by employers. An eligible employee may take paid sick leave if they are unable to work (including telework) due to one of the following six reasons:

  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 or quarantine;
  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 childcare 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.

Pay for emergency paid sick leave

If an employee uses emergency paid sick leave to care for themselves for reasons 1, 2 or 3 listed above, employers must pay the employee their regular compensation up to a maximum of $511 per day or $5,110 in the aggregate.

If an employee uses EPSL to care for a family member or for reasons 4, 5 or 6 listed above, employers must pay the employee either two-thirds of their regular compensation or the minimum wage, whichever amount is greater, up to a maximum of $200 per day or $2,000 in the aggregate.

  • For full-time employees, an employee is entitled to 80 hours of sick leave.
  • For part-time employees, the number of hours that employee usually works, on average, over a two-week period. For example, if the office manager works 30 hours per week, they would be entitled to 60 hours of sick leave.

EPSL does not carry over into the following calendar year, and employers are not required to pay out unused leave upon an employee's separation from employment.

Tax credits

Under the Act, employers will receive quarterly tax credits for paid family leave, allowing credits against the employers’ portion of Social Security taxes. Employers are entitled to credit for qualified family leave wages, up to $200 per day for each individual and $10,000 total with respect to all calendar quarters.

Notice requirements

Employers must post a notice about leave entitlements in a conspicuous location; the Department of Labor is expected to publish a model notice for positing on or before March 25.

Special rights, exclusions

The Secretary of Labor has the authority to exempt employers with fewer than 50 employees from the requirements of the paid leave mandate if providing the paid leave would jeopardize the business’s viability.

Additionally, the Secretary of Labor has the authority to exempt health care providers, including, possibly, dentists and other dental office staff. The U.S. Department of Labor may make announcements about possible exemptions for small employers, including dentists, before the law takes effect April 1. CDA will update dentists as soon as that determination is made.

Phase 3 of the response act, which would add nearly $1 trillion in spending to stimulate the economy, will potentially have a vote early next week. Phase 1 provided $8.3 billion to target coronavirus vaccine research and development.

CDA will keep members updated about COVID-19-related legislation in the newsroom and at CDA’s COVID-19 information center.

March 26: Article updated to provide the act's new effective date of April 1.

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