Congress Passes Legislation to Provide Paid Leave to Employees During COVID-19 Emergency

On March 18, 2020, the Senate passed the Families First Coronavirus Response Act, (the “Act”), which was passed by the House last week.  President Trump swiftly signed the legislation, which is effective in 15 days.  All public employers and private employers with under 500 employees are covered by the Act, which provides for emergency paid family and medical leave as well as emergency paid sick leave, among other provisions including changes to unemployment insurance and food and nutrition benefits.

Much of the final Act tracks the bill originally enacted in the House (discussed here), but there are some significant changes.  Below we summarize the key important provisions of the Act as passed by Congress that relate to paid leave.

Emergency Family and Medical Leave

• Employees are eligible for up to 12 weeks of paid emergency family and medical leave under the Act if they have worked for an employer for at least 30 days, and are unable to work or telework because their minor child’s school or daycare is closed due to a public health emergency (as is the case in many states, including Oregon, Washington, and California).  This is a significant reduction from the emergency family and medical leave coverage in the earlier House bill, which also protected absences for COVID-19-related medical reasons.
• The first 10 days of emergency family and medical leave are unpaid; however, the employee may use any other available paid leave (including the emergency paid sick leave discussed below).  After 10 days, employers are required to pay employees at least 2/3 of their regular pay during the leave, up to a maximum of $200/day and $10,000 total.  Employers are entitled to a tax credit in an amount equal to any emergency family and medical leave wages they are required to pay.
• Health care providers, emergency responders and employers with fewer than 50 employees may apply for a hardship exemption (the details of which are to be determined through legislative rulemaking).
• There are potential limitations on the obligations of an employer with fewer than 25 employees to reinstate employees who take emergency family and medical leave.  Contact your Stoel Rives employment attorney to learn more.

Emergency Paid Sick Leave

• Emergency paid sick leave will be available for employees regardless of tenure, in addition to any other paid leave to which an employee is already entitled (such as paid sick leave in Oregon and Washington).  Employers cannot require employees to use other employer-provided paid leave before taking emergency paid sick leave.
• Employees are eligible for emergency paid sick leave if they:

1. 1. Are subject to a local, federal, or state quarantine order;
   2. Have been advised by a medical provider to self-quarantine due to COVID-19 concerns;
   3. Are experiencing symptoms of and are seeking medical care for symptoms of COVID-19;
   4. Are caring for an individual for any of the foregoing reasons;
   5. Are caring for a child whose school has been closed, or whose child care provider is unavailable, due to a public health emergency related to COVID-19 (as is currently the case in Oregon and Washington); or
   6. Are 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.

• Full time employees will be eligible for up to 80 hours of paid sick leave, and part-time employees are eligible for a prorated amount based on their average hours worked over a two-week period.
• Employees must be paid their regular rate, up to a maximum of $511 per day and $5,100 total for reasons (1) – (3) above.  Employees must be paid 2/3 of their regular rate, up to a maximum of $200 per day and $2,000 total for reasons (4) – (6) above.  Employers are entitled to a tax credit in an amount equal to any emergency sick leave wages they are required to pay.
• As with the emergency family and medical leave, health care providers, emergency responders and employers with fewer than 50 employees may apply for a hardship exemption (the details of which are to be determined through legislative rulemaking).