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What Employers Need to Know About the Family First Act

As many of you have heard, on March 18, 2020, the U.S. Senate passed, and President Trump signed, the Families First legislation. The law will become effective on April 2, 2020. This legislation dealt with a number of different issues in different areas. Two divisions of the Act have a direct impact on employers: an expansion of FMLA availability and mandated paid time off for certain sick leave situations. I am not going to repeat every word of these two divisions in this Memo, but I would like to highlight certain provisions for baseline knowledge.

Emergency Paid Sick Leave 

The Act requires paid sick leave for six (6) defined circumstances. To be entitled to the payment, the employee must be unable to work because:

  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 medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in paragraph 1 or has been advised under paragraph 2;
  5. The employee is caring for a son or daughter if the school or place of care has been closed, or their child care provider is unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

If these conditions exist, a full-time employee is entitled to 80 hours of emergency paid sick leave. Part-time employees are entitled to pay for the number of hours they normally work in a two-week period. For absences in categories 1, 2, and 3, the rate of sick pay is the employee’s normal hourly rate. Absences for categories 4, 5, and 6 may be paid at two-thirds of their normal rate. If an employee falls into one of the six (6) categories, the emergency sick pay must be used first. The employer cannot make the employee first use existing PTO, sick or vacation time they have already accrued. Only after the employee has used this sick time can the employer begin to tap into the accrued leave not based on this law. There are also prohibitions on an employer retaliating against an employee who seeks or uses the protection of this Act.

Expansion of FMLA leave

The Act also amended the FMLA in response to virus concerns. The changes to the FMLA provisions are both broader and narrower than the changes under the Emergency Paid Sick Leave provisions. It is narrower because this leave only applies in one situation, rather than the six (6) described above. This leave is available only when the employee is unable to work (or telework) due to a need for leave to care for their son or daughter under 18 if the school or place of care has been closed, or the child care provider of such son or daughter in unavailable due to COVID-19 reasons. So, essentially, FMLA leave is only available under situation five (5) above.

The Act is broader however, in length. In this situation, an employee will be entitled to leave for up to 12 weeks, and unlike the previous requirements of the FMLA, this leave needs to be paid. Pay is required to be at least two-thirds of their normal rate. Also, all employees will be entitled to this if they have been employed for 30 calendar days, which is a reduction from normal FMLA eligibility. The Act also has a quirky provision that the first ten (10) days of this leave may be unpaid. But the employee has the option to substitute their 80 hours of paid sick time for that period, so it is doubtful this will often come into play.

There are additional provisions and protections, as well, which go beyond the scope of this Memo. If you have questions in that regard, please contact Roger Justin, Adam Ripple or Alex Masteller who will help work through the issues. We remain committed to providing quality service to our clients in these trying days.