Families First Coronavirus Response Act to Require Emergency Sick Leave and Family Leave Aid to Covered Employees

March 20, 2020, by Susan P. Segal

Emergency Paid Sick Leave

Division E of the Act applies to private sector employers with fewer than 500 employees, government employers, and all other non-private entity employers with more than one employee. This part of the Act requires those employers to provide a covered employee with two weeks of emergency paid sick leave if the employee is unable to work (or telework) for the following coronavirus related reasons:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to the coronavirus;
• The employee has been advised by a health care provider to self-quarantine due to concerns related to the coronavirus;
• The employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
• The employee is caring for an individual who is subject to a quarantine or isolation order or advised to self-quarantine by a health care provider;
• The employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
• The employee is experiencing any other condition substantially similar to the coronavirus, as specified by the U.S. Department of Health and Human Services.

This part of the Act applies to both full time and part time employees, and imposes caps on dollar amounts of emergency sick leave that must be paid. Wages required to be paid under these provisions will not be subject to the 6.2 percent social security payroll tax typically paid by employers on employees’ wages.

The Act also allows employers of employees who are health care providers or emergency responders to exclude those employees from the emergency paid sick leave provisions.

Emergency Family Leave

Division C of the Act applies to the same employers as Division E, and requires those employers to provide emergency family leave to full and part time employees who have been employed for at least 30 days and who are unable to work (or telework) for up to 12 weeks because they must care for their son or daughter if the school or place of care has been closed or a child care provider is unavailable due to public health emergency.

Under this part of the Act, the first 10 days in which an employee takes emergency leave may be unpaid. An employee may elect to substitute any accrued paid vacation leave, personal leave, or medical or sick leave for unpaid leave, but the employer cannot require that.  After 10 days of leave, an employer is required to provide emergency paid family leave at an amount not less than two-thirds of an employee’s regular rate of pay up to $200 per day or $10,000 in the aggregate.

Like Division E, this part of the Act exempts wages paid under this provision from the 6.2 percent social security payroll tax. It also allows employers of employees who are health care providers or emergency responders to exclude those employees from the emergency sick leave provisions.

The above summary touches on the main provisions of the Act that affect employee benefits due to COVID-19 and related public health emergencies. The United States Department of Labor and the United States Treasury Department will be issuing further guidance.