COVID-19 Paid Leave: What Employers Need to Know

The Department of Labor has released initial guidance for employers covered by the Families First Coronavirus Response Act. The Act requires covered employers to provide up to 12 weeks of paid leave benefits to employees impacted by the coronavirus pandemic.

Highlights:

Effective date of the new law is April 1, 2020.
ALL public agency and school employers are required to comply, regardless of size.
Private sector businesses are only covered if they employ 499 employees or fewer. The new guidance gives direction to private companies on how to determine employee count.

More detail about the impacts to employers can also be found in our COVID-19 FAQ.

I’m a public agency (i.e. school district or municipality); how do I count my employees?

Public-sector employers, including school districts and municipalities do not have to calculate an employee count. All public-sector employers are covered by this Act, regardless of size.

How do I know if my private business is required to offer paid leave under this Act?

A private sector employer questioning if it has 499 or fewer employees should calculate head count each time an employee needs to take leave under the Act. All employees within the United States count, even part-time, temporary, seasonal, and employees on a leave of absence. Parent companies with multiple subsidiaries may be required to aggregate related businesses to determine total employee count.

More information about calculating head count can be found in our COVID-19 FAQ.

I gave employees paid leave before April 1, 2020. Do I get credit for that?

No, the guidance clarifies that the new paid leave requirements start on April 1, 2020. Any paid leave provided prior to that date cannot be deducted from available leave under the law starting April 1.

Can my employees get both emergency paid sick leave and school closure leave?

Yes. The law provides for two types of leave: up to 80 hours of emergency paid sick leave for certain reasons related to COVID-19, and up to 12 weeks of leave (the first two may be unpaid, the remaining 10 weeks must be paid) for certain employees impacted by school or childcare closures. Employees may qualify to use both types of leave and may opt to use emergency paid sick leave to be paid during the first 10 days of a school closure.

While employees may be eligible for both types of leave, twelve weeks is the maximum amount of paid leave available under the Act. For example, if your employee takes 12 weeks of school closure leave, and then contracts COVID-19, they are no longer eligible to receive two weeks of emergency paid sick leave, because they have used their total 12-week time bank. (They may have other entitlements to leave under the ADA*, your state laws, or existing leave policies.)

Further Guidance Expected

This Q&A is only the first wave of multiple regulations the DOL is expected to issue as employers and the federal agencies work to implement the new law. Employers are encouraged to continue to follow existing laws and regulations in an even-handed and fair way while remaining mindful that in a state of national emergency, flexibility may be required.
For more information, visit our COVID-19 FAQ.

Update 4/3/2020: Additional COVID-19 Paid Leave Guidance Issued

On Wednesday, the Department of Labor issued temporary regulations further detailing the paid leave portions of the Families First Coronavirus Relief Act (FFCRA). The 124-page rule helps determine how employers should administer this leave.

The FFCRA went into effect on April 1, 2020. The law requires covered employers to offer eligible employees up to 80 hours of emergency paid sick leave, up to a specified cap, for certain COVID-19-related reasons. The law also expands FMLA eligibility to include up to 12 weeks of job-protected leave for employees who are unable to work because they must care for a child whose school or daycare has closed, or whose care provider is now unavailable. Ten weeks of this school closure leave must be paid, up to a certain cap.

We have established our COVID-19 Frequently Asked Questions to keep you informed about the impact of these regulations and anticipate updates as new guidance is released.