What Employers Need to Know About the Families First Coronavirus Response Act, HR 6201

Mar 19, 2020   Print PDF

By Aviva Kamm | Related Practice: Employment

On March 18, 2020, the President signed the Families First Coronavirus Response Act, HR 6201, in response to the coronavirus pandemic. Here is a summary of key points for employers to consider in business planning and compliance in the weeks and months to come.

Effective date: The Act is effective April 1, 2020 (15 days after it was signed).

Emergency Paid Sick Leave:

  • All public employers, and all private employers with fewer than 500 employees, must provide up to two weeks of paid sick leave to any employee who cannot work or telework due to a qualifying reason.
  • Private employers with fewer than 50 employees may apply to the Department of Labor for an exception on grounds that complying with the law’s requirements “would jeopardize the viability of the business as a going concern.”
  • There are six qualifying reasons for taking leave:
  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 a quarantine or isolation order as described in (1) above or has been advised as described in (2) above.
  5. The employee is caring for a son or daughter whose school or place of care has been closed, or the child care provider 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.
  • Employers may exclude healthcare providers or emergency responders from paid sick leave. The Department of Labor should be writing regulations explaining who may be exempt and what procedures to follow.
  • Full-time employees are entitled to 80 hours of paid sick leave; part-time employees are entitled to leave in the amount they typically work in a two-week period.
  • The maximum amount an employer must pay is $511 per day/$5,110 aggregate when leave is taken for reasons 1, 2, or 3, and $200 per day/$2000 aggregate when leave is taken for reasons 4, 5, or 6.
  • Covered employers are required to post a notice informing their workforce of these rights, “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” A model notice is expected from the Department of Labor before the Act becomes effective. The Act does not indicate whether this requirement will be waived or modified for employers who are operating through telework, but it would be prudent to circulate notices by email, on company intranet, or in another manner likely to reach employees who are not physically present at the physical premises.
  • All Emergency Paid Sick Leave expires on December 31, 2020. Unused paid leave does not carry over into 2021. There is no right or entitlement for unused leave to be paid to employees on separation from employment.
  • Emergency Paid Sick Leave does not diminish the rights or entitlements employees already have under (a) other federal, state, or local law, (b) a collective bargaining agreement, or (c) existing employer policy. In other words, this is an extra two weeks of leave, even if an employer offers leave in compliance with Seattle and Washington State laws or a voluntary employer policy.
  • Employers may claim a tax credit up to the $511/day and $200/day maximum amounts. The credits will be claimed against taxes imposed under Internal Revenue Code Section 3111(a), the employer portion of Social Security taxes. Any amount that an employer overpays will be repaid by the federal government like a tax refund. We recommend contacting your payroll service or accountant for advice about the mechanics of how to claim this tax credit, including adjustments to payroll processing beginning on April 2, 2020.
Emergency FMLA Expansion:
  • The Act temporarily changes the Family Medical Leave Act (FMLA) to add Public Health Emergency Leave.
  • As with Emergency Paid Sick Leave, these changes apply only to government employers and private employers with fewer than 500 employees.
  • Employee eligibility is much easier to satisfy than the ordinary FMLA rules. Any employee who has worked for the employer for at least 30 days is eligible for up to 12 weeks of job-protected leave.
  • Just as with Emergency Paid Sick Leave, the Act allows employers to exclude healthcare providers or emergency responders from Public Health Emergency Leave.
  • The first two weeks of the leave are unpaid. This is because it is designed to overlap with the Emergency Paid Sick Leave.
  • The remaining ten weeks of the leave are paid. Employers must pay the employee at a rate of no less than two-thirds of the employee’s usual rate of pay, capped at $200 per day and $10,000 in total.
  • Employees have similar job restoration rights as under the regular FMLA, except that employers with fewer than 25 employees may deny restoration to the same or a similar job if the employee’s position does not exist after FMLA leave due to economic conditions or other changes in operating conditions of the employer that are caused by a public health emergency during the period of leave.
  • The Act authorizes the Department of Labor to write regulations allowing employers with fewer than 50 employees to be exempt if complying with the law’s requirements “would jeopardize the viability of the business as a going concern.” The conditions of such exemptions are not yet known - the Department of Labor should be writing regulations for employers to follow.
  • Employers may claim a tax credit up to the $511/day and $200/day maximum amounts. The credits will be claimed against taxes imposed under Internal Revenue Code Section 3111(a), the employer portion of Social Security taxes. Any amount that an employer overpays will be repaid by the federal government like a tax refund. We recommend contacting your payroll service or accountant for advice about the mechanics of how to claim this tax credit, including adjustments to payroll processing beginning on April 2, 2020.
The information in this article is current through the morning of March 19, 2020. Please contact Sarah Wixson, Aviva Kamm, or Krista Slosburg for up-to-date information after that date, or for help complying with this law or seeking an exemption if your businesses has fewer than 50 employees.