The Families First Coronavirus Response Act was signed into law on March 18, 2020 and goes into effect on April 1, 2020. Many business owners are concerned about its provisions and how it will affect their employees. Below is a summary of what I have read online. I’m not covering all provisions. I’m focusing on the provisions that most affect small and medium-sized businesses.
Emergency Family and Medical Leave Expansion Act
This is Emergency FMLA leave that is triggered differently than normal FMLA leave. As a refresher, normal FMLA leave requires that the employee work for the business for at least one year and have worked at least 1250 hours in the last year. That employee would be eligible for up to 12 weeks of unpaid leave with their job held until they return.
This act creates Emergency FMLA leave. To qualify, an employee must only have worked at least 30 days for an employer, that employer must have less than 500 employees, and the employee must have a qualified need. Qualified needs include the inability to work because the employee needs to stay home to care for their child because the child’s school or daycare has been closed.
Qualifying employees are entitled to up to 12 weeks of leave. That leave will be paid at not less than 2/3 of the employee’s salary. The employer is responsible for paying those employees.
There is one provision that potentially changes everything. The Secretary of Labor has the power to exclude businesses with fewer than 50 employees if compliance with the law would jeopardize the viability of the business.
This creates considerable concerns for employers who have employees with children. There is talk that schools in Illinois may be closed for the remainder of the school year. That means that many employees may qualify for this emergency leave.
But do they actually qualify? I think it’s a bit of a hard question. For example, what of an employee has children at home, but their spouse is also at home? Do they qualify? No concrete answers, but I think there is a strong argument that the employee would not qualify because they do not need to stay home because another adult is home to care for the children.
Further complicating things is the ability of the Secretary of Labor to exclude small businesses where compliance would jeopardize the viability of the business. What business would not be jeopardized by having to pay workers who aren’t producing value for the company? It seems like these provisions would have to be enacted for many businesses, but we have no guidance as to whether anyone will be excluded.
Emergency Paid Sick Leave Act
This is emergency paid sick leave that is available to employees at the employer’s expense. It states that employers must offer 80 hours of paid sick leave to qualifying employees.
There are two bases for qualification. First, if the employee is sick. There are not nearly enough tests for determining whether someone has COVID-19 so a sick employee is anyone that has been told to self-quarantine. I don’t believe a stay-at-home order is the same as a self-quarantine order, but I am yet to be told I am right.
Second, an employee qualifies if they must stay home to care for a child who is home due to school closures. Essentially the same qualifications as the Emergency FMLA leave.
Note, workers who can telework must do so. This also only applied to businesses with fewer than 500 employees, and companies with fewer than 50 employees are subject to exclusion by the Secretary of Labor.
If you have employees who have children they must care for (or are themselves sick), you will be obligated to pay them two weeks paid sick leave followed by 10 weeks of Emergency FMLA paid at 2/3 of their salary.
This went into effect on April 1, 2020. Employees still have to claim leave under the act so your business may not be affected until employees are aware of their benefits (you are also required to post a notice). However, I think most businesses will need to move quickly to assess their liability associated with this act.
The next question is how does this interact with the stimulus. More on that next week!
If you have any questions about these provisions, please feel free to contact us for more guidance!