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On March 19, 2020, President Trump signed into law the Families First Coronavirus Response Act, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans. The Act goes into effect April 2, 2020. Employers will be looking for implementation guidance from the Department of Labor and the Internal Revenue Service.

Emergency paid sick leave 

The new law requires 80 hours of paid sick leave for full-time government workers and employees of companies with fewer than 500 employees. Part-time employees must receive a proportionately similar amount. Covered employers must give emergency paid sick leave to any employee, regardless of the length of employment, for a qualifying emergency related to COVID-19. To qualify for emergency paid sick leave, the employee must be unable to work (or telework) 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 a medical diagnosis;
4. The employee is caring for his or her son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
5. 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.

The Department of Labor is expected to issue regulations allowing employers of health care providers and emergency responders to opt-out of the benefit and exempt small businesses with fewer than 50 employees from the requirement of providing emergency paid sick leave if it would jeopardize the viability of the business.

Expanded FMLA for a public health emergency

The new law also creates a new category under the Family Medical Leave Act for a “qualifying need related to a public health emergency” with respect to COVID-19.  Employers with fewer than 500 employees must provide up to 12 weeks of partial paid leave when an employee is unable to work (or telework) due to school or child care closures related to COVID-19. The first 10 days of leave are unpaid (unless an employee voluntarily elects to use existing accrued paid vacation leave, personal leave, or medical or sick leave to cover the unpaid leave), and the remainder of the leave must be paid at least two-thirds of the employee’s regular rate of pay. This expanded leave must be made available to any employee who has been employed for 30 calendar days. The law exempts employers that are health care providers or emergency responders, and public agencies. Exemptions may also be sought by employers with fewer than 50 employees whose economic viability would be jeopardized. This expanded leave is only available until Dec. 31, 2020. 

Other provisions 

The new law requires health plans to cover COVID-19 testing at no charge. A refundable tax credit for employers that provide paid leave benefits as required by the new law is also included. The U.S. Treasury is expected to use its regulatory authority to advance funds to some small businesses to cover the cost of providing paid sick leave.