The Families First Coronavirus Response Act: A First Look At What It Means For Employers


Yesterday, the United States government took a significant next step in its fight against the continuing coronavirus pandemic.  The Families First Coronavirus Response Act, signed into law on Wednesday, March 18, 2020, aims to slow the progression of COVID-19 by extending and expanding valuable benefits available to workers impacted by the spread of this disease.

The FMLA expansion and paid sick leave provisions apply only to private employers with fewer than 500 total employees.  Both allow employers of employees who are healthcare providers or emergency responders to exempt these employees.  Both provisions also allow exemptions for small businesses with fewer than 50 employees when the potential negative impact of these provisions could be significant.

Two key provisions of this law – Family Medical Leave Act (FMLA) expansion and paid-sick leave obligations – are the focus of this update.  Noteworthy for today, the law also requires health plans and insurers offering group or individual health insurance to cover both COVID-19 diagnostic testing and services tied to the administration of the test. 

COVID-19 FMLA Expansion:

This provision takes effect no later than 15 days from its passage (April 1, 2020) and will remain in place through the end of 2020.  It amends the FMLA to allow employees who are unable to work in any capacity to take leave to care for their own children under the age of 18 if the child’s day care, elementary or secondary school closes or temporarily transitions to cyber-learning as a result of this public health emergency.  COVID-19 FMLA expansion also:

COVID-19 Paid Sick Leave

This provision obligates applicable employers to immediately make 80 hours of paid sick leave available for full time employees.  Similarly, for part-time employees, the time made available equals the average number of hours worked over a two-week period.  COVID-19 paid sick leave also:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The employee is advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or is advised to self-quarantine due to COVID-19 concerns.
  5. The employee is caring for their son or daughter if the school or place of care of the son or daughter is closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 concerns.
  6. The employee is 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.

While clarification would be welcome, we believe that from a coordination standpoint (expanded FMLA and paid sick leave), an employee who opts to immediately use the 80 hours of paid leave available to care for an out-of-school/care child would concurrently initiate the unpaid portion of the expanded FMLA provision. 

What We Make of What This New Law Means for Employers:

If it has not done so by now, the restrictions imposed by the current, historic coronavirus pandemic should provoke all remaining employers to revisit their remote work, time off, sick and leave benefits and related policies.  Certainly, employers of less than 500 employees will need to consider how they will operationalize, finance (employers pay the benefits now and receive a payroll tax credit later) and communicate these expanded benefits.  Practical considerations include: 

Employers also should check with their health plans and insurers to understand their positioning with respect to COVID-19 diagnostic testing and services coverage requirements. 

Baker Tilly Vantagen professionals are committed to monitoring this highly fluid situation and are here to offer guidance and recommendations on the steps you can take to ensure compliance as well the health and safety of your workforce.