OUTDATED POSTING – updated on 3/18/20 – See new blog for version of bill passed on 3/18/20 and expected to be signed into law by President Trump.

As part of the bipartisan relief package passed over the weekend, HR 6201: the “Families First Coronavirus Response Act,” and expected to be passed by the Senate and signed by President Trump, there is a new federal paid sick leave and expanded FMLA for employers with less than 500 employees.

Temporary FMLA Expansion

Congress amended the Family and Medical Leave Act (FMLA). Employees are eligible for paid FMLA for coronavirus-related illness through December 31, 2020. Here are the important changes to normal FMLA criteria:

  • Employees need to be employed for at least 30 days (as opposed to 1 year).
  • It temporarily expands the “employer” definition to any employer with less than 500 employees (as opposed to 50 or more within 75 miles).
  • For “family care” leave, the definition is expanded to include: foster and adoptive parents, step-parents, parents of a domestic partner, parents in-law, guardians, and those who stood in loco parentis; next of kin; a daughter who is pregnant (even if over 18); grandchildren; and grandparents.
  • Eligible reasons for leave now also include:
    • Care for a family member under coronavirus quarantine; and
    • Care for a child if their school or place of care is closed or unavailable.
  • The first 14 days of coronavirus FMLA leave is unpaid, unless the employee voluntarily elects to use available paid leave. The remainder of up to 12 weeks of leave is paid at least at a rate of 2/3 the regular rate for the hours that the employee would have worked, up to a cap of $200 per day. (There are provisions for calculating the regular hours for employees with variable schedules.)
  • Job restoration is required after FMLA leave for employers with at least 25 employees, subject to a few exceptions.
  • A notice poster will be required. (I will post a link to it once it is available.)

Federal Paid Sick Leave

The federal government also passed paid sick pay applying to employers with less than 500 employees. Employees are eligible for 80 hours (or the pro rata amount for part time employees based on their average schedule over a two-week period) of paid sick leave, up to $511 per day. Sick leave is available for the following reasons, regardless of the employee’s length of employment:

  1. To self-isolate because the employee is diagnosed with coronavirus;
  2. To obtain a medical diagnosis or care if the employee is experiencing symptoms of coronavirus;
  3. To comply with a recommendation of, or order by, a public official or a healthcare provider to self-isolate because the presence of the employee at work would jeopardize the health of others because the employee was exposed to coronavirus or is exhibiting symptoms;
  4. To care for  a family member who is self-isolating because he/she has been diagnosed with coronavirus or is experiencing symptoms and needs medical care;
  5. To care for a family member if a public official or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of others because of the exposure of the family member to the coronavirus or the family member’s symptoms of coronavirus; or
  6. To care for the child of the employee if the school or place of care is closed or otherwise unavailable because of coronavirus.

What is critical for employers to understand is that this new paid sick leave must be IN ADDITION to existing paid leave. Employers are not permitted to amend their existing paid leave to avoid providing federal paid sick leave. To defray the costs of the paid sick leave, employers will receive a 100% tax credit (against social security tax) for all money paid for paid sick leave. If the cost of the leave exceeds the social security tax liability, the federal government will send a check for the difference.

In addition, employees cannot be required to find their replacement, and there are non-discrimination and non-retaliation provisions. There will be a required notice poster for this leave as well. (I will link to it once it is available.)

How does this apply to your workplace?

If you have less than 500 employees: Both the new FMLA and paid sick leave apply to you. Employers with less than 50 employees can apply for an exemption to the FMLA leave if providing the leave will cause the business to fail. There is no option of an exception to the 80 hours of sick leave.

If you have 500 or more employees: None of this applies to you, but more may be coming in the coming weeks. It is unclear why large employers were left out.

Paid sick leave will fully compensate employees earning up to about $130,000 a year for that two-week period of paid sick leave. The paid FMLA will compensate employees earning up to about $75,000 a year for the 10-week paid period.