COVID-19 UPDATE FROM BAYLOR EVNEN: FAMILY FIRST CORONAVIRUS RESPONSE ACT SUMMARY AND EMPLOYER CONSIDERATIONS

We know many of our clients have been responding to the rapidly-evolving circumstances created by COVID-19. We have appreciated the opportunity to partner with many of you in addressing your organization’s response to this pandemic and issues such as remote work considerations, restricting business travel, potential employee leave, and other matters necessary to navigate these uncertain times.

As you may know, the Family First Coronavirus Response Act was enacted on March 18 and will impact employers. Baylor Evnen has prepared the attached summary of certain provisions of this new law; you may also click here to view it.

What does this mean?

The Family First Coronavirus Response Act includes two new laws applicable to employers:

1. The Emergency Family Medical Leave Expansion Act, which amends and supplements the Family and Medical Leave Act (FMLA); and

2. The Emergency Paid Sick Leave Act.

At a glance, the Emergency FML Expansion Act, obligates employers to provide eligible employees with up to 12 weeks of FMLA leave (“Public Health Emergency Leave”) if the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age because 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 an emergency with respect to COVID-19 declared by a Federal, State, or local authority.

The Emergency Paid Sick Leave Act provides up to eighty (80) hours of paid sick leave to eligible employees who cannot work because they are subject to quarantine, experiencing symptoms of COVID-19 and seeking medical diagnosis, advised by a healthcare provider to self-quarantine, caring for a family member subject to a quarantine or advised to self-quarantine, or who is caring for children whose schools or child care provider have closed or is unavailable.

When do businesses have to comply?

The law was enacted yesterday, March 18, 2020, and will take effect no later than 15 days after enactment. The latest it will take effect is April 1, 2020. It will expire on December 31, 2020, unless extended past that date.

Does this apply to my organization?

Both laws define an “employer” as a private entity with less than 500 employees, and government organizations of any size. There is no minimum size for private employers, although those with fewer than 50 workers may be exempted from providing emergency paid family and medical leave and paid sick leave if compliance “would jeopardize the viability of the business.” The Department of Labor is expected to issue regulations clarifying this exemption. The law applies to private businesses, non-profits, government entities, and includes no exception for religious-based organizations. There are several nuances and eligibility requirements for employees, which are discussed more fully in our summary.

We are assembling a list of frequently asked questions our clients and friends of the firm are likely to have in response to this bill and will disseminate that as soon as we can.

In the meantime, please feel free to contact any Baylor Evnen employment lawyer with questions about your organization’s specific circumstances:

Susan M. Foster

Christopher M. Schmidt

Torrey J. Gerdes

The law, guidance, and mandates related to this pandemic are constantly evolving and changing, so it is critical to consult updated resources. Press releases from Nebraska’s Governor, including executive orders, are available here. The CDC has issued and updated Guidance for Businesses and Employers, which is available here. The Equal Employment Opportunity Commission has also issued guidance, available here. Guidance from the Occupational Safety and Health Administration is located here.