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Families First Coronavirus Response Act

In response to the COVID-19 outbreak the Families First Coronavirus Response Act was enacted by the Federal Government.  This Act creates the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, enacted by the United States Government.  This article focuses on the provisions of the act that affect employers.  Legislation was signed by the President on March 18 and therefore the leave provisions will go into effect on April 2. 

The Act provides for paid sick leave for employees impacted by COVID-19 and those providing care for individuals with COVID-19.  The Act also provides funding for benefit programs however this summary will only address the provision of the Act which affect employers. 

Two provisions of the Act provide paid leave to employees who are unable to work due to the COVID-19 outbreak.  They are Emergency Family Medical Leave Expansion Act (“FMLA”) and the new Emergency Paid Sick Leave Act.

Emergency Family and Medical Leave Expansion Act

Expanded Coverage and Eligibility

The Act amends and expands FMLA on a temporary basis. The current employee threshold for FMLA coverage changes from only covering employers with 50 or more employees to instead covering employers with fewer than 500 employees. The eligibility requirement is lowered so that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leaveConsequently, thousands of employers previously not subject to the FMLA may be required to provide job-protected leave to employees for a COVID-19 coronavirus-designated reason. The expanded FMLA provisions now include language allowing the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. 

Availability of Emergency Leave

Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. As of now this is the only qualifying basis for the new emergency FMLA leave.

Paid Leave

The first 10 days of emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid time off, such as vacation or sick leave, to cover some or all of the unpaid 10-day period. After the unpaid 10-day period, the employer must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. This is capped at $200 per day and $10,000 in the aggregate per employee. 

Calculating Pay for Non-Full Time Employees

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. 

Job Restoration

Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. Employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

Effective Date and Expiration

This program will become effective April 2, 2020 and remain in effect until December 31, 2020. 

Emergency Paid Sick Leave Act

Reasons for Paid Sick Leave

This new Act allows an eligible employee to take paid sick leave because the employee is:

  • subject to a federal, state or local quarantine or isolation order related to COVID-19; 
  • advised by a health care provider to self-quarantine due to COVID-19 concerns; 
  • experiencing COVID-19 symptoms and seeking medical diagnosis; 
  • caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; 
  • caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 
  • 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.

 
Caring for another who is subject to an isolation order or advised to self-quarantine as described above is not limited to family members. 

Eligibility

This provision requires employers with fewer than 500 employees to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above). There is an exception, at the election of the employer, for employers who are healthcare providers or emergency responders.

Cap on Paid Sick Leave Wages

Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.

Carryover and Interaction with Other Paid Leave

This paid sick leave will not carry over to the following year and is in addition to any paid sick leave currently provided by employers. 

Calculating Rate of Pay

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period. A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act (summarized above).

Penalties

Employers cannot require employees to use “other paid leave provided by the employer” before using emergency sick leave and creates civil penalties for taking adverse action/retaliating against an employee who uses emergency sick leave pay or complains about a violation.

Effective Date and Expiration

This program will become effective April 2, 2020 and remain in effect until December 31, 2020. 

Tax Credits For Paid Sick And Paid Family And Medical Leave

The Families First Coronavirus Response Act provides a series of refundable tax credits for employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. The tax credits are allowed against the employer portion of Social Security taxes. Employers should consult their tax professional for the impacts of this provision of the law.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at www.HKQLaw.com or by calling (800) 760-1529.

				

 

As Hourigan, Kluger and Quinn addresses the concerns raised by COVID-19, the health and safety of our clients, employees and friends of the firm remain our top priority.


These are very difficult and scary times and we hope that you and your loved ones are safe and symptom free. We recognize that so many of you are understandably anxious about your health, the economic impact of this pandemic and all of the consequences of social isolation.

We also recognize that many of you are anxious about how the coronavirus is impacting the Court systems, our firm and your cases. Although all of our offices are closed, our firm has remained fully operational and we have initiated procedures that allow all of our attorneys and staff to work remotely from their homes. Each of us and our staff will respond to any emails and calls about your cases as quickly as possible.

Our Federal and State Courts have instituted significant changes in their calendars as a result of the coronavirus. Although most courthouses are closed to the public, and Hearings and Trials will be delayed for some time, there are matters that can proceed telephonically and by video. Despite these changes in the Court calendars, we are working diligently on your cases and are determined to do whatever we possibly can to assure an early and just recovery for you and your loved ones. Even under these difficult circumstances, we believe that "Nobody will work harder for you than we will."

With regard to new potential clients, we are not in a position to have an in-person new client meeting, but we will be conducting these initial meetings via phone. New potential clients should call us for a free telephone consultation at (570) 287-3000.

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