On March 18, 2020, the Families First Coronavirus Response Act was signed into law. The Act covers many aspects of the federal government’s response to the COVID-19 pandemic. In part, it ensures paid leave for workers who are infected or who are caring for a family member with the virus. The Act is effective from April 1 until Dec. 31, 2020, and contains several key provisions that will likely impact employers.
Emergency Paid Sick Leave
Private sector employers with less than 500 employees, and public agencies and non-private entities are required to provide employees with paid sick leave for a qualifying emergency related to COVID-19 if the employee is:
The employer of an employee who is a health care provider (as defined under 29 USC 2611) or an emergency responder may elect to exclude the employee from the application.
Health care providers are defined under the FMLA as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices; or any other person determined by the secretary to be capable of providing health care services.” Prior Department of Labor (DOL) guidance includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants, among a few others, to the list of persons “capable of providing health care services.” Future DOL regulations will certainly address any expansion of this definition under this Act.
In addition, the Secretary of Labor has the authority to exclude small businesses with less than 50 employees from this provision when the imposition of such requirements would jeopardize the viability of the business.
Regardless of the length of employment, covered employers must provide up to 80 hours of paid sick leave to any full time employee. Part-time workers are eligible for leave hours equal to the average number of hours the employee works over a two-week period.
The paid portion caps at $511 per day and $5,110 in the aggregate for use related to a quarantine or isolation order, medically-advised self-quarantine, or symptoms of COVID-19; and $200 per day and $2,000 in the aggregate for caring for someone under isolation order/self-quarantine/symptoms, caring for a child due to school or child care closures, or under substantially similar conditions.
An employer cannot require an employee to first use other paid leave, and cannot require employees to look for a replacement for themselves while using paid sick leave. The right to the paid leave ends at the working shift immediately following the end of the circumstances leading to the need for the paid sick time, and the employee may be required to follow reasonable notice procedures following the first paid sick leave day to continue receiving the paid sick leave. The paid sick time does not carry over from year to year.
The Act includes protections against retaliation for using the rights available under the Act, and violations are considered a failure to pay minimum wages under the FLSA. The Department of Labor will create a model notice that employers must post in a conspicuous place notifying employees of their rights under this Act.
Emergency Family and Medical Leave Expansion
The Emergency Family and Medical Leave Expansion Act institutes several changes to FMLA until Dec. 31, 2020, based on a qualifying need related to the public health emergency.
Specifically, private sector employers with fewer than 500 workers, and government entities, must provide up to 12 weeks of FMLA leave for a worker employed for at least 30 calendar days who is unable to work (or telework) due to a need for leave to care for a child under 18 years old if the child’s school, place of care, or care provider has closed due to a COVID-19 public health emergency declared by a federal, state or local authority. Note that the qualifying need does not include isolation orders, self-quarantine or symptoms related to COVID-19.
The employer of an employee who is a health care provider or an emergency responder may exclude the employee from the provision. This exception appears to be limited to employees who are health care providers and may be relied upon at the option of the employer.
Health care providers are defined under the FMLA as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or any other person determined by the Secretary to be capable of providing health care services.” Prior guidance from the Department of Labor includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants, among a few others, to the list of persons “capable of providing health care services.” Future regulations from the Department of Labor will address any expansion of this definition under this Act.
In addition, employers with less than 50 employees could seek to obtain an exemption when the requirements would endanger business viability.
The first 10 days of leave under the Act may be unpaid leave, but the employee is permitted to substitute any accrued paid leave during these 10 days. After the 10 days, the employer must provide paid leave for each additional day of leave taken under the Act.
The amount of the paid leave must be at least 2/3 of the employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. This paid leave cannot exceed $200 per day or $10,000 in total. Typically an employee must be restored to the prior position, however, there are new exceptions for employers with less than 25 employees under economic conditions caused by COVID-19.
Insurance Coverage Provision
Effective March 18, 2020, the Act requires health insurers to provide coverage, without cost sharing or prior authorization requirements, for FDA-authorized testing for the diagnosis of COVID-19; and items and services during the visit to the health care provider (including an urgent care center or emergency room), that results in an order for or administration of testing for the diagnosis of COVID-19, in relation to the furnishing of the testing or the evaluation for the purposes of determining the need for the testing.
This provision also waives cost sharing for certain visits relating to testing for the diagnosis of COVID-19 under Medicare, Medicare Advantage, Medicaid, CHIP, and Tricare; treats personal respiratory protective devices as covered countermeasures; and increases the federal medical assistance percentage by 6.2% and increases the Medicaid allotment for territories.
This overview includes the requirements for businesses as the law is currently written. Christian & Barton attorneys will monitor the forthcoming regulations clarifying the requirements under the new law.
*Families First Coronavirus Response Act: Questions and Answers (U.S. Department of Labor)
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This has been provided as an informational service and does not constitute legal counsel or advice, which can only be rendered in the context of specific factual situations. If a legal issue should arise, please contact an attorney listed or retain the assistance of other competent legal counsel. Case results depend on a variety of factors unique to each case and results do not guarantee or predict a similar result in any future case undertaken.