This content was published prior to the combination of Dentons Davis Brown. Learn more about Dentons Davis Brown. 

Update: On March 24, the DOL issued guidance and published the required notice posters.

The Families First Coronavirus Response Act was signed by the President Wednesday, March 18, and will be effective in 15 days (April 2). It has multiple provisions relating to items such as family food aid, PPE and other matters.  Of immediate interest for employers are the extended FMLA and paid leave requirements set forth in the statute.

Emergency FMLA Expansion

These provisions are effective immediately and extend to December 31, 2020.  They will apply to a qualifying need related to the public health emergency and include:

• Employees who have been employed for a minimum of 30-calendar days with the employer.
• Employers with fewer than 500 employees in each working day for 20 or more calendar weeks in the current or preceding year.
• Applies to illness and school or childcare closures when an employee is unable to work or telework due to such events.
• Businesses with fewer than 50 employees are exempt if they can show business necessity and economic hardship which would jeopardize the business “as an ongoing concern.” In other words, if the cost of the plan would put them out of business or bankruptcy.  How this may be shown will be the subject of rules to be created by the Department of Labor (DOL).
• The first 10-day period is unpaid, but the employee can choose to substitute accrued PTO.  Note that this appears to be by the employee’s choice which is different than the standard FMLA provisions and may not fully mesh with Iowa Workforce Development expectations. It also may not fully align with the later paid leave provisions in the law.  Until we see new rules from the DOL it may be hard to tell how the details will work out.
• After the 10-day period, employees meeting the conditions of the FMLA expansion will receive paid leave for the remainder of the covered time at a rate of 2/3 of their standard pay.  There are limits on the amount that will be required to be paid.  Specifically, the total amount of leave paid pursuant to the statute “shall not exceed $200 per day or $10,000 in the aggregate.”
• Employees will be restored to their prior position or an FMLA equivalent unless the leave was for a school closure AND the specific job no longer exists due to economic conditions/operating conditions of the employer AND the employer has fewer than 25 employees. 
  • Employers are required to contact prior employees who took this leave and who then lost their jobs due to economic conditions for up to one year if new positions open. This would be similar to the process used for recalls from a layoff.  This also presumes the employer remains in business.
• Healthcare providers, including emergency responders, may exclude certain employees from this coverage.  This would likely relate to school/childcare closure or limited quarantines.  Any exclusion for healthcare workers would need to be coordinated with the public health rules and guidelines.

Emergency Paid Sick Leave

This applies to all employees who are unable to work or telework, which would include an employee who is:

• Subject to a governmental quarantine
• Has been advised by a health care provider to self-quarantine
• Experiencing COVID-19 symptoms and is seeking medical diagnosis
• Caring for an individual who is subject to quarantine either due to governmental or medical order
• Caring for a son or daughter if there is a COVID-19 based school or childcare closure
• Any other “substantially similar condition”

Employees who meet the criteria above have the right to:

1. 80 hours of paid sick leave for full time employees and a prorated amount based on average hours worked for part time employees over a two-week period
2. Such sick leave is immediately available and is not based on length of service
3. Such sick leave does not carry over from year to year and is not used for other purposes other than those cited above and related to the current pandemic
4. Employers may not require that employees “find their own replacement” in order to qualify for this sick leave
5. Employers may not require that employees first exhaust other paid sick time prior to using this mandated sick leave
6. Violations of this statue are wage hour violations
7. In the event the need for leave is due to quarantine or personal illness the total dollar amount of leave is limited to $511 per day and a total aggregate amount of $5,110
8. In the event the need for leave is due to care of another person or school/daycare closure, the amount is limited to $200 per day and a total aggregate amount of $2,000.

The law also increases federal funding for job service programs administered by each state and provides certain employer tax credits.

NEW EMPLOYER REQUIREMENT

All employers are required to post on their premises a DOL notice about this leave. The notice is to be prepared and made available by the DOL within 7 days.  The DOL is also tasked with crafting other rules for the administration of this law.  We recommend checking the DOL website on a regular basis as well as the Davis Brown Coronavirus/COVID-19 Legal Resource Center for updates on this matter.