On March 18, 2020, Congress passed the Families First Coronavirus Response Act (the "Act"), which is comprehensive legislation intended to target economic issues arising from the coronavirus ("COVID-19") during this economic crisis. Two provisions stand out for employers as the most relevant and immediate. They are the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Both provide paid, job-protected leave for employee absences related to COVID-19. The Act is not currently the law, as it is awaiting the President's signature. Even after enactment, the two provisions would go into effect “no later” than 15 days later. This alert is an update covering the changes passed by the House on Monday night, which were then passed by the Senate on March 18. Importantly, the modified bill from Monday, which the Senate has ultimately approved, makes a critical change to the bill initially passed by the House on Saturday.

Emergency Family Medical Leave Expansion Act

The Act's Division C sets out the "Emergency Family and Medical Leave Expansion Act," ("Emergency FMLA") which adds a new job-protected leave entitlement to Section 102(a)(1) of the Family and Medical Leave Act ("FMLA"). Once Emergency FMLA takes effect, an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period (ending on December 31, 2020) if the eligible employee is unable to work (or telework) to care for a son or daughter under 18 years of age if the child's school or care provider is unavailable due to a public health emergency. When foreseeable, employees must give their employers notice before taking Emergency FMLA. Employers should note that this revision limits the availability of Emergency FMLA from what the House initially passed on March 14.

Perhaps the most important part of the FMLA amendment is the new definition of "employer" – employers with fewer than 500 employees must provide Emergency FMLA to eligible employees, as opposed to the FMLA's familiar "50 or more employees" definition. However, the Act states that employers who do not employ "50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year "will not be subject to civil actions by employees for violation of Emergency FMLA. Even so, employers who do not meet the "50 or more employees" definition are subject to civil liability in proceedings brought by the Secretary of Labor. Notably, the Act gives authority to the Secretary of Labor to issue regulations excluding certain health care providers and emergency responders, as well as exempting small businesses with fewer than 50 employees from the Emergency FMLA requirements when the requirements could "jeopardize the viability of the business as a going concern."

Employers should note that Emergency FMLA for COVID-19 purposes uses a different definition of "employee" – employees are eligible for Emergency FMLA if they have been employed by the employer for at least 30 calendar days.

The first 10 days of leave taken for the reasons listed above can be unpaid leave, but employees can substitute any accrued paid leave like vacation or sick leave. Other mandated paid leave, such as leave required under the Paid Sick Leave Act, may apply.

After the first 10 days, employers must provide paid leave for each day of Emergency FMLA. Employers are required to provide employees with two-thirds of the employee's regular rate of pay as defined by the FLSA for the number of hours the employee would normally be scheduled to work. Where an employee's schedule varied from week to week such that an employer would be unable to determine the right number of hours with certainty, employers should use a number of hours equal to the average number the employee was scheduled to work over the 6-month period ending on the start date of the employee's leave period, including any scheduled hours for which the employee took any type of leave. For employees who did not work over the 6-months prior to the leave period start date, the employer may use the average number of hours per day that was reasonably expected of the employee at the time of hire. The Act states that in no event shall the paid leave exceed $200 per day or $10,000 in the aggregate.

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