On March 18, 2020, President Donald Trump signed into law the “Families First Coronavirus Response Act” (H.R. 6021). This article will address the three (3) main provisions that will affect private businesses and their employees in Illinois and the US: the “Emergency Family and Medical Leave Expansion Act”, the “Emergency Paid Sick Leave Act”, and briefly I will discuss the “Tax Credits for Paid Sick and Paid Family and Medical Leave”.
The “Emergency Family and Medical Leave Expansion Act” provides temporary amendments to the “Family Medical and Leave Act of 1993” that will be in place until December 31, 2020. The FMLA has been amended to include employers with fewer than 500 employees. However, the Department of Labor has the authority to exempt small employers with fewer than 50 employees if it would be an undue financial hardship. There has been no more word on this exemption as of the writing of this article.
- Employers must provide 12 weeks of leave for all employees who have been on the payroll for at least 30 calendar days as a result of the current Public Health Emergency.
- Qualifying leave is expanded to include employees who are unable to work from the office or telework because they must care for their child(ren) due to the closure of a school or childcare provider as a result of a declared Public Health Emergency by a Federal, State, or local authority.
- The first 10 workdays of leave can be unpaid or the employee may choose to use personal vacation, sick leave or PTO but it is not required.
- After the first 10 workdays, employers are required to provide paid leave for each day under this amended Act up to 12 weeks.
- The employer must pay full-time and part-time employees at least two-thirds of their regular rate of pay, not to exceed $200/day or an aggregate of $10,000.
- Employees who work for an employer with fewer than 25 employees are not guaranteed job protection if a) the employee’s leave is a result of the loss of childcare or school closing due to a Public Health Emergency and b) the position is no longer available due to changes in economic conditions, or c) the employer makes reasonable efforts to place them in an equivalent position, or d) the employer makes reasonable efforts to contact an employee when an equivalent position becomes available.
The “Emergency Paid Sick Leave Act” provides paid sick leave to employees who cannot work or telework for leave related to the COVID-19 virus. This paid leave will be effective until December 31, 2020. The Act applies to employers with fewer than 500 employees. However, the Department of Labor has the authority to exempt small employers with fewer than 50 employees if it would be an undue financial hardship. There has been no more word on this exemption as of the writing of this article.
- Employers must provide paid sick time to employees who a) are required to self-quarantine, b) have symptoms and are seeking medical diagnosis, c) are caring for someone affected by COVID-19, or d) are caring for a child that has been displaced due to the closing of a school or loss of a childcare provider.
- Employees are entitled to up to 80 hours of paid sick leave for full-time, or the average number of hours worked over a 2-week period for part-time work.
- Sick pay is limited to a maximum of $511 per day or $5,110 aggregate for the employees own sick leave or self-quarantine, or $200 per day or $2,000 aggregate for caring for a family member.
- Sick leave under this Act cannot be carried over from year to year.
- Employers may not require a qualified employee to find a replacement employee prior to taking sick leave.
- Employees may use this paid sick leave as defined in this Act immediately no matter how long they have worked for the employer.
- Employers may not require employees to use regular employer paid time off benefits before using the Paid Sick leave they are entitled to under this Act.
In addition, it is unlawful for Employers to discharge, discipline or discriminate against any employee(s) who take qualified Paid Sick Leave under this Act. If they are found to do so, they will be subject to penalties under the “Fair Labor Standards Act”.
Where Paid Family and Medical and Paid Sick Leave interact is within that first 2-week period where an employee is staying home to care for a child or children due to emergency school closings or loss of a childcare provider. Under the Family and Medical Paid Leave Act the first 2 weeks are unpaid, unless the employee chooses to use employer provided paid sick or vacation benefits. Whereas the Paid Sick leave requires employers to pay 2 weeks of paid leave which is available immediately. The end result is that the FMLA has been expanded to include protected time off because of COVID-19 school or childcare closures and the Paid Sick Leave Act requires employers to pay 2 weeks of applicable childcare time off. Therefore, all childcare related time off is paid time off; the first 2 weeks under the Paid Sick Leave Act and the remaining 10 weeks under the expanded Family and Medical Leave Act.
The last provision under the “Families First Coronavirus Response Act” that would have the most impact on private employers is the “Tax Credits for Paid Sick and Paid Family and Medical Leave”. The IRS will issue a tax credit for each calendar quarter equal to 100% of the qualified sick leave and family leave wages paid out by affected employers. For details regarding these tax credits and how they will affect your business, contact your account.
Written by: Kerry Rieder-McLaughlin, HR Consultant, Law Offices of McLaughlin & Associates
March 20, 2020
NOTE: This publication should not be regarded as legal advice or legal opinion. The content is intended for general informational purposes only. If you have any concerns regarding anything in this publication you may contact your own attorney, CPA, or our law office at 630-230-8434, website www.ma-lawpc.com.