The Act expands qualifying reasons for leave under the FMLA:

New leave reason: Closed schools/childcare providers

Employees who are unable to work or tele-work due to the need for leave to care for a son or daughter under the age of 18 if the school (elementary or secondary) or place of care has been closed or the childcare provider of such son or daughter is unavailable due to a public health emergency. A public health emergency is an emergency with respect to COVID-19 declared by a federal, state or local authority.

Modifies definition of Covered Employer

Emergency provisions apply to employers with fewer than 500 employees. The bill contains provisions that allow DOL to exempt businesses with fewer than 50 employees if the imposition of leave requirements would jeopardize business viability.

Expands definition of Eligible Employee

Emergency provisions apply to employees who have been employed for at least 30 calendar days by the employer.

Creates potential exclusion of health care providers and emergency responders

Legislation grants the DOL power to exclude health care providers and emergency responders from the definition of eligible employee.

Employer obligations for payment

• Thefirst10daysofthe12-weekFMLAleaveperiodmaybeunpaidleave,duringwhichtimeanemployeemay substitute (but may not be compelled to take) accrued vacation, personal, medical or sick leave.
• After the first 10 days of leave, the employer shall provide paid leave for each day at a rate not less than 2/3 of regular rate of pay for the number of hours the employee would normally be scheduled to work. For those employees with varying work schedules, the number of hours should be based upon the average number of hours scheduled over the previous six-month period or the reasonable expectation of hours at time of hire. In no event will the benefit amount for paid leave exceed $200 per day and $10,000 in the aggregate.

Notice

The employee should provide notice of the need for leave as soon as practicable.

Documentation

Documentation will be required and may include (1) recommendation from a public health official or health care provider that relevant employee has symptoms or should be quarantined; (2) documentation or evidence of exposure; or (3) notice of school or childcare provider closure.

Job Restoration

Bill contains job restoration provisions. However, these provisions will not apply to employers with fewer than 25 employees if 1) the employee takes leave under this Act; 2) the position the employee held when the leave began does not exist due to economic conditions or other operational changes the employer had to make due to the public health emergency; 3) the employer makes reasonable efforts to restore the employee to similar position with equal benefits and pay; or 4) if reasonable efforts of the employer fail, the employer should make reasonable efforts during a one year period to contact the employee if an equivalent position becomes available.

Employers subject to Collective Bargaining Agreement (CBA)

An employer who is signatory to a CBA may meet obligations under this Act by making contributions to a multi-employer fund plan or program.

Employer tax credits

The legislation provides a refundable payroll tax credit to employers to cover 100 percent of the cost of wages.

Expiration

Provisions expire on December 31, 2020.

Effective date

April 1, 2020 (15 days after March 18, 2020 enactment)

This is a summary of the provisions in the legislation enacted on Wednesday, March 18. We understand that this new law raises many questions about administration of these benefit plans. We are working quickly to operationalize these changes and will be providing regular updates to our customers and business partners.