Michael B. Kornhauser
The Families First Coronavirus Response Act (and its Impact on Nursing Facilities)
Updated: Oct 20, 2021
On March 18, 2020, in response to the international pandemic caused by the Coronavirus (also known as COVID-19), President Trump signed the “Families First Coronavirus Response Act” (“the Act”). The Act will go into effect on April 20, 2020 and, among other things, will provide temporary relief in the form of free Coronavirus testing, increased funding for various government programs, an entitlement to emergency paid sick leave, and an expansion of the existing Family Medical Leave Act (“FMLA”). This blog will focus on the Act's implementation of emergency paid sick leave and its expansion of FMLA coverage.
Temporary Emergency Paid Sick Leave
The Act implements the Emergency Paid Sick Leave Act. But, before we jump in, let's get some definitions out of the way. Under the Emergency Paid Sick Leave Act, an "employer" is generally (and broadly) defined as “any person engaged in commerce or in any industry or activity affecting commerce that…in the case of a private entity or individual, employs fewer than 500 employees…” The term “employee” is also broadly defined, consistent with the Fair Labor Standards Act of 1939, as “any individual employed by an employer."
With those definitions in mind, the new (albeit, temporary) Emergency Paid Sick Leave Act states that an “employer shall provide…paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave” caused by any of the following circumstances:
The employee is subject to a government-imposed quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine due to COVID-19;
The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
The employee is caring for someone who has been quarantined due to COVID-19;
The employee is caring for a child whose school or place of care has been closed (or whose child care provider is otherwise unavailable) due to COVID-19; or
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Of particular significance, these new provisions apply to all employees, regardless of how long an employee has been employed by an employer.
That said, if any of these circumstances apply, full times employees must be entitled to 80 hours of sick leave, while part-time employees must be entitled to sick leave equal to the number of hours that the employee works, on average, over a 2-week period. In either event, paid sick leave will not carry over to the following year and an employer cannot require an employee to use other paid leave provided to the employee before accessing sick leave under the provisions of the Emergency Paid Sick Leave Act.
Leave will also be paid at the employee’s regular rate of pay, with certain upper limit caps based upon the circumstances warranting sick leave. More specifically, employees requiring leave due to the circumstances identified in paragraphs 1, 2, or 3, above, can receive up to $511 per day (for a maximum 10-day benefit of $5,110). Employees requiring leave due to the circumstances identified in paragraphs 4, 5, or 6, above, can receive up to $200 per day (for a maximum 10-day benefit of $2,000). To offset these costs, employers will be able to claim tax credits in amounts equal to 100% of the sick leave wages paid by the employer.
The Secretary of Labor will be preparing a model notice for employers to post on their premises which outlines the benefits afforded to employees under the Emergency Paid Sick Leave Act.
Significantly, an employer of an employee who is a health care provider or an emergency responder may elect to exclude those health care provider employees from the reach of the Emergency Paid Sick Leave Act.
Finally, these provisions are set to expire on December 31, 2020.
The Family Medical Leave Act and its Temporary Emergency Expansion
The Family Medical Leave Act (29 U.S.C. § 2601, et. seq.) has been in place since 1993 and entitles "eligible employees" of "covered employers" to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Let's get some definitions out of the way. First, a “covered employer” is (a) a private-sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer; (b) a public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or (c) a public/private elementary or secondary school, regardless of the number of employees it employs. Second, an “eligible employee” is generally one who (a) works for a covered employer (as defined); (b) has worked for the covered employer for at least 12 months; (c) has at least 1,250 hours of service of the employer during the 12 month period immediately preceding the leave; and (d) works at a location where the employer has at least 50 employees within a 75-mile radius.
Under the existing FMLA framework, eligible employees are entitled to either 12 workweeks of leave in a 12-month period from a covered employer for (a) the birth of a child and to care for the newborn child within one year of birth; (b) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; (c) to care for the employee’s spouse, child, or parent who has a serious health condition; (d) a serious health condition that makes the employee unable to perform the essential functions of his or her job; (e) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or 26 workweeks of leave from a covered employer during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
The Act now temporarily expands the scope of FMLA coverage through implementation of the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion”). Under the Emergency FMLA Expansion, eligible employees have been re-defined to temporarily include an employee who has been employed with a covered employer for “at least 30 calendar days…” The Emergency FMLA Expansion also expands the circumstances warranting an entitlement to leave to include an employee who “is unable to work (or telework) due to a need for leave to care for [a] son or daughter under 18 years of age…if the [child’s] school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
Under the new (albeit, temporary) framework, a qualifying employee may take up to 12 weeks of leave. The first 10 days of leave will be unpaid, but the employee may elect to use accrued paid sick leave and/or vacation during this otherwise unpaid period. After the initial 10 day period, an employee is entitled to receive two-thirds (or 66.6%) of their normal wages for the number of hours they would be regularly scheduled to work, up to a maximum of $200 per day ($10,000 in total). Employers will be provided a tax credit for 100% of the qualified leave wages paid in accordance with the Emergency FMLA Expansion.
In addition, an employee returning from such leave must be restored to a position “equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment,” except where (a) the employer employs fewer than 25 employees; (b) leave is requested under the Emergency FMLA Expansion; and (c) the position previously held by the employee when leave commenced no longer exists (as a result of economic conditions or other changes in the operating conditions of the employer caused by the public health emergency during said leave).
Once again, an employer of an employee who is a health care provider or an emergency responder may elect to exclude those health care provider employees from the reach of the Emergency FMLA Expansion provisions.
Finally, these temporary expansions are also set to expire on December 31, 2020.
Among other things, Michael B. Kornhauser, Esq. counsels nursing facilities on employee-related matters and represents nursing facilities in employment-related disputes. If you have any questions, feel free to contact him.