The Families First Coronavirus Response Act (H.R. 6201) signed into law on March 18, 2020 in response to the coronavirus COVID-19 pandemic.
We wanted to share important details.
Legislative Update
The Families First Coronavirus Response Act extends additional assistance and protections to individuals and businesses affected by the COVID-19 crisis.
In general, it contains several components, such as:
Provides for additional funding for a Special Supplemental Nutrition Program for Women, Infants, and Children of $500,000,000, to remain available through September 30, 2021.
Provides for additional funding for the Commodity Assistance Program for the emergency food assistance program of $400,000,000, to remain available through September 30, 2021 to provide for supplemental allotments to households receiving benefits under Food and Nutrition Act of 2008 where at least 1 child of the household is affected because his/her school is closed for at least 5 consecutive days during the public health emergency.
The DOD Defense Health Program is provided $82,000,000 in additional funding, to remain available until September 30, 2022.
The Department of Health and Human Services: “Indian Health Services” is provided $64,000,000, to remain available until September 30, 2022; “Aging and Disability Services Programs” is provided $250,000,000, to remain available until September 30, 2021 for several activities such as Home-Delivered Nutrition Services, Congregate Nutrition Services, and for Nutrition Services for Native Americans; and “Public Health and Social Services Emergency Fund”, is provided $1,000,000,000, to remain available until expended, for health services, items and services provided to uninsured individuals.
The Department of Veterans Affairs, Veterans Health Administration for “Medical Services”, is provided $30,000,000, to remain available until September 30, 2022.
The Department of Veterans Affairs, Veterans Health Administration for “Medical Community Care”, is provided $30,000,000, to remain available until September 30, 2022.
SNAP Flexibility for Low-Income Jobless Workers eligibility under a Supplemental Nutrition Assistance Program shall not terminate because of exceeding eligibility time in accordance with law unless ineligible for other reasons.
Additional SNAP Flexibilities in a Public Health Emergency allows state governments to request permission to grant emergency allotments to households participating in the supplemental nutrition assistance program under the Food and Nutrition Act of 2008 to address temporary food needs not greater than the applicable maximum monthly allotment for the household size. It expands food assistance through the Women Infants and Children (WIC) program, food banks, Meals on Wheels, SNAP, and provides electronic benefit transfer amounts to families who would usually receive free and reduced-price meals at school.
The Emergency Unemployment Insurance Stabilization and Access Act of 2020, provides for the making of emergency administration grants to the accounts of the States in the Unemployment Trust Fund for the administration of states’ unemployment compensation law. There are other provisions for funding of extended unemployment compensation for a limited period under the Federal-State Extended Unemployment Compensation Act of 1970. In essence, it extends emergency unemployment insurance to help cover workers who are furloughed or quarantined due to an outbreak in their workplaces.
Increases in Medicaid Allotments for Territories by amending Section 1108(G) of the Social Security Act. The legislation makes additional adjustments to the slated increases in the Medicaid allotments for Puerto Rico, the Virgin Islands, Guam and American Samoa.
Provides for free testing for diagnosis of the virus that causes COVID-19: All individuals who need a test, including “Indians”, those with private insurance, Medicare, Medicaid, CHIP, VA, FEHBP, and TRICARE, as well as the uninsured, will have access at no cost, including office visits, telehealth visits or ER visits resulting in the test.
New Unpaid and paid leave under the FMLA related to a public health emergency called “Public Health Emergency Leave” through the Emergency Family and Medical Leave Expansion Act. A temporary expansion of Family and Medical Leave Act from the date it takes effect and ending on December 31, 2020 with new definitions of eligible employees and for covered employers:
““Eligible employee” who has been employed for at least 30 calendar days by the employer”; rather than the hours of work requirement during the last 12-month period under the current FMLA.
A covered “employer” is any person engaged in commerce or in any industry or activity affecting commerce who has fewer than 500 employees.
The term `qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
However, the Secretary of Labor may issue regulations to exclude certain health care providers and emergency responders from the definition of eligible employee; and to exempt small businesses with fewer than 50 employees when otherwise it would jeopardize the viability of the business as a going concern.
This Public Health Emergency Leave is an additional covered reason to enjoy leave within the existing 12 weeks of unpaid leave under the FMLA in that regard it doesn’t expand the FMLA entitlement.
For the first 10 days of leave, the employee can elect to take it as unpaid leave, or the employee could choose to substitute any accrued vacation, personal or sick leave (including in certain instances the emergency paid “sick” leave described below).
After an initial 10 days of unpaid leave, the employer would be required to provide paid leave for the remaining FMLA balance available based on an amount that is not less than two-thirds of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work.
The amount of the paid leave is capped, per employee, to no more than $200 per day or $10,000 in the aggregate.
An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of these provisions.
This provision would be effective “not later than 15 days after the date of enactment.” That is, April 2nd, 2020.
Right to reinstatement.
Employers with fewer than 25 employees do not have to reinstate an employee if they are experiencing significant economic hardship, and the position doesn’t exist, and the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment within a year the leave commences or the public health emergency concludes.
Employers with 25 or more employees would be required to reinstate employees after their FMLA leave period ends.
Emergency Paid Sick Leave Act
A covered employer shall provide to each employee paid sick time of up to 80 hours for full time employees, at the FLSA regular rate, and in accordance to the number of hours worked in average over two weeks for part time employees, to the extent that the employee is unable to work (or telework) due to a need for leave because of the COVID-19 related reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order.
- The employee has been advised by a health care provider to self-quarantine.
- The employee is experiencing symptoms and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (a) or has been advised as described in paragraph (b).
- The employee is caring for his/her son or daughter if the school or place of care has been closed, or the childcare provider is unavailable.
- 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.
In no event shall such paid sick time exceed:
$511 per day and $5,110 in the aggregate for a use described in the first three paragraphs above; and
$200 per day and $2,000 in the aggregate for a use described in the last three paragraphs above.
An employer of a health care provider or an emergency responder may elect to exclude such employee from this paid leave benefit.
The term “covered employer” means any person engaged in commerce or in any industry or activity affecting commerce that—in the case of a private entity or individual, employs fewer than 500 employees; and in the case of a public agency or any other entity that is not a private entity or individual, employs 1 or more employees.
Paid sick time provided to an employee under this Act shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time under the Act.
Employers are prohibited from and may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
The paid sick time under this Act shall be available for immediate use regardless of how long the employee has been employed by an employer.
Sequencing. An employee may first use such paid sick time for the purposes described. While employers are prohibited from and may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under the Act.
Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in this Act.
Lastly, the Act specifies as a “Rules Of Construction” that “Nothing in this Act shall be construed– “to require financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement, or other separation from employment for paid sick time under this Act that has not been used by such employee.”
Taxation of leave wages. Any wages paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act shall not be considered wages for purposes of the Federal Insurance Contribution Act (“FICA”), among others.
Tax Credits for paid leaves. Title III provides for the implementation of tax credits by the Internal Revenue Service for paid sick and paid family and medical leave in the private sector. It includes a provision for the Secretary of the Treasury (or the Secretary’s delegate) to pay to each possession of the United States for certain benefits taken under the Emergency Paid Sick Leave Act.
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