Congress recently passed, and the President signed, the Families First Coronavirus Response Act (the “FFCRA”). The FFCRA provides assistance to workers impacted by the COVID-19 pandemic.
There are two aspects of the FFCRA directly applicable to employers:
1. mandatory paid sick leave under the Emergency Paid Sick Leave Act (“Paid Sick Leave Act”) and,
2. expansion of medical leave under the Emergency Family Medical Leave Expansion Act (“Emergency FMLA”).
The Paid Sick Leave Act and the Emergency FMLA become effective April 1, 2020 and last until December 31, 2020.
Employers and Employees Covered
The Emergency FMLA and Paid Sick Leave Act apply only to private employers with fewer than 500 employees and certain public employers.
An employer of an employee who is a healthcare provider or an emergency responder can elect to exclude the employee from the application of these two Acts.
Both allow subsequent U.S. Department of Labor regulations to exempt small businesses with fewer than 50 employees when the provision would jeopardize the viability of the business as a going concern.
Emergency FMLA Expansion for COVID-19
The Emergency FMLA amends the FMLA to allow an employee who is unable to work (or telework) due to a need to care for the employee’s son or daughter (under 18 years of age) if the child’s elementary or secondary school or place of child care has been closed, or the childcare provider is unavailable, due to a “public health emergency.” A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
Paid Sick Leave Act for COVID-19
Employers with fewer than 500 employees must make available 80 hours of paid sick leave for full-time employees.
Part time employees will receive paid sick leave equal to the average number of hours worked over a two week period.
Paid sick leave must be provided for the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- 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).
- The employee is caring for their son or daughter if the school or place of child care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
- 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.
Amount of Pay
Under the Emergency FMLA provisions, when leave is needed due to a school or daycare closure, the employer can provide the first 10 days of leave unpaid (NOTE: the employee can use the 80 hours of Emergency Paid Sick Leave during this time). Subsequent absences for this reason must be paid at 2/3 the employee’s regular rate of pay. The Act includes a cap of $200 a day and $10,000 in aggregate. If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid leave.
Paid sick leave is paid at the employee’s regular rate, but it too is capped: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; and $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.
In short: The amendments include a $511 daily cap for leave benefits for employees with their own personal coronavirus-related medical conditions, and a $200 cap for employees caring for others with such symptoms or for school closings
Both the FMLA changes and the paid sick leave requirements take effect on April 1, 2020 and will remain in place until the end of 2020.
FREQUENTLY ASKED QUESTIONS
Is leave “job protected”?
Yes, the FFCRA offers job protection. However, the FMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave.
For other employers, the employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.
Who pays for the sick time or leave?
Employers must pay the benefits, but they will receive a tax credit for doing so.
Is the paid sick leave in addition to current leave provided by the employer?
The benefits of the FFCRA are in addition to normal paid benefits. An employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave available under the Act.
Which employees are eligible for these benefits?
The Emergency FMLA is available to employees who have been employed for at least 30 calendar days. The usual FMLA requirements that the employee has been employed for a year, worked for at least 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius would not apply to the Emergency FMLA leave.
The Paid Sick Leave Act requirements apply to all employees employed by covered employers.
What notice must an employee provide for leave?
The Emergency FMLA provisions require employees to provide the employer with “notice of leave as is practicable.”
The Paid Sick Leave provisions state that after the first workday (or portion thereof) that an employee receives paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving the paid sick leave.
Does the 500-employee requirement refer to a location or company-wide?
The company (not just the location) must have fewer than 500 employees.
Is carryover required for unused emergency paid sick leave?
The paid sick provisions state that unused paid sick leave does not carry over from one year to the next.
Can an employee who takes emergency Paid Sick Leave be required to find a replacement worker?
The Paid Sick Leave provisions state that an employer may not require an employee to find a replacement worker when the employee takes such leave.
Must an employer pay out unused emergency paid sick leave if the employee separates from its employment?
An employer is not required to pay unused Paid Sick Leave if an employee separates from employment.
Are employers with 500 or more employees obligated to provide paid sick or leave benefits?
They have no such obligation under this legislation. However, they still must comply with obligations under state or local paid sick leave or paid family and medical leave laws and administer sick or paid time off or paid leave provided under company policies or collective bargaining agreements.
Sam Stecker Otero counsels employers and executives in all aspects of employment law. Sam routinely advises her clients on the requirements they face in hiring, employment policies, layoffs, discipline, EEOC Charges, discrimination allegations and wage and hour issues, including overtime and classification determinations. She also defends allegations of harassment as well as disputes arising out of employment contracts, including covenants not to compete.