Legal alert! On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act.  While this Act is meant to protect workers out of work due to coronoavirus quarantines, sickness and to help those with children at home, the Act is going to be severe consequences to small business owners.

There are two main parts that could affect small business owners:

1) Sick Leave Provisions

PAID SICK TIME REQUIREMENT
Sec. 5102.
(a) In General.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care 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 an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(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.
Except that 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 this subsection.
(b) Duration Of Paid Sick Time.--
(1) IN GENERAL.—An employee shall be entitled to paid sick time for an amount of hours determined under paragraph (2).
(2) AMOUNT OF HOURS.—The amount of hours of paid sick time to which an employee is entitled shall be as follows:
(A) For full-time employees, 80 hours.
(B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
(3) CARRYOVER.—Paid sick time under this section shall not carry over from 1 year to the next.
(c) Employer’s Termination Of Paid Sick Time.—Paid sick time provided to an employee under this Act shall cease beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time under subsection (a).
(d) Prohibition.—An employer 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.

Penalties for failure to comply include:
Sec. 5104.
It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who--
(1) takes leave in accordance with this Act; and
(2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.
ENFORCEMENT
Sec. 5105.
(a) Unpaid Sick Leave.—An employer who violates section 5102 shall--
(1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206); and
(2) be subject to the penalties described in sections 16 and 17 of such Act (29 U.S.C. 216; 217) with respect to such violation.
(b) Unlawful Termination.—An employer who willfully violates section 5104 shall--
(1) be considered to be in violation of section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)); and
(2) be subject to the penalties described in sections 16 and 17 of such Act (29 U.S.C. 216; 217) with respect to such violation.
IN ADDITION TO THE NEW SICK TIME PROVISIONS, FMLA HAS BEEN TEMPORARILY EXPANDED:

“SEC. 110. PUBLIC HEALTH EMERGENCY LEAVE.
“(a) Definitions.—The following shall apply with respect to leave under section 102(a)(1)(F):
“(1) APPLICATION OF CERTAIN TERMS.—The definitions in section 101 shall apply, except as follows:
“(A) ELIGIBLE EMPLOYEE.—In lieu of the definition in sections 101(2)(A) and 101(2)(B)(ii), the term ‘eligible employee’ means an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested under section 102(a)(1)(F).
“(B) EMPLOYER THRESHOLD.—Section 101(4)(A)(i) shall be applied by substituting ‘fewer than 500 employees’ for ‘50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year’.
“(2) ADDITIONAL DEFINITIONS.—In addition to the definitions described in paragraph (1), the following definitions shall apply with respect to leave under section 102(a)(1)(F):
“(A) QUALIFYING NEED RELATED TO A PUBLIC HEALTH EMERGENCY.—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.
“(B) PUBLIC HEALTH EMERGENCY.—The term ‘public health emergency’ means an emergency with respect to COVID–19 declared by a Federal, State, or local authority.

“(C) CHILD CARE PROVIDER.—The term ‘child care provider’ means a provider who receives compensation for providing child care services on a regular basis, including an ‘eligible child care provider’ (as defined in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n)).

“(D) SCHOOL.—The term ‘school’ means an ‘elementary school’ or ‘secondary school’ as such terms are defined in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
In summary, the expanded FMLA provides that employers with under 500 employees must provide effectively 10 weeks of paid leave to employees that are sick or caring for a child out of school due to a Covid-19 closure.  Note that this is for an employee that cannot telework.

The law takes effect April 2, 2020.

Employers should now carefully consider their options before the law takes effect.

Our office stands ready to assist. Please book a call to see how we can help you consider your options with employees.

The Small Business Administration (SBA) has published some guidance for business owners on their website.  Below is a summary of some important points:

​The following interim guidance may help prevent workplace exposures to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance also provides planning considerations if there are more widespread, community outbreaks of COVID-19.
To prevent stigma and discrimination in the workplace, use the guidance described below and on the CDC’s Guidance for Businesses and Employers web page.
Below are recommended strategies for employers to use now. In-depth guidance is available on the CDC’s Guidance for Businesses and Employers web page:

• Actively encourage sick employees to stay home
• Separate sick employees
• Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
• Perform routine environmental cleaning
• Advise employees before traveling to take certain steps
  • Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from designated countries with risk of community spread of Coronavirus, and information for aircrew, can be found on the CDC website.
• Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
  • Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
  • If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

If your business needs some employment law guidance or contract review (force majeure clauses), our office is offering discounted phone consults through March 31. Reach out to our office to book a call.