3/26/20
The Senate passed the Families First Coronavirus Response Act (“FFCRA” or the “Act”) on March 18th. The President signed the legislation on the evening of March 18, which means the leave provisions will go into effect on April 1 and has a sunset provision of December 31, 2020. The Act creates several significant paid leave requirements for employers. Even employers not usually covered by the Family and Medical Leave Act (FMLA) are required to offer FMLA paid leave and paid sick time for employees who must miss work for coronavirus-related reasons. The FFCRA contains several relief measures of importance to employers:
- Paid leave to all employees for certain COVID-19 related matters;
- Family and Medical Leave Act expansion to provide partially paid leave to care for the employee’s child, if the child’s school or other place of care has been closed, or the child care provider is unavailable, due to a COVID-19 related emergency as declared by the Federal, State or local government;
- Tax credits equal to 100% of the FFCRA-mandated paid leave wages paid by an employer each calendar quarter subject to certain caps (the tax credits are not available for government employers); and
- Greater access to unemployment insurance for employees who are off work for certain reasons related to COVID-19.
The Act is an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans.
- Employers with one or more but fewer than 500 employees are subject to the Act.
- Exception: employers with fewer than 50 employees may apply for an exemption from the new requirements if they can establish that compliance with the Act would jeopardize the viability of their business.
- Any individual employed by the employer
for at least 30 days (before the first day of leave) may take up to 12 weeks
of job-protected leave.
- Leave maximum is still 12 weeks’ leave in a 12-month period.
- This means that public emergency health leave should not be available once the employee has used up their 12 weeks of FMLA leave for any and all reasons within the measurement period.
Please contact an employment lawyer to discuss your specific business situation.
Basic Elements of the Act
If your business falls within the above requirements, an employee may claim paid leave for any of the following reasons related to the coronavirus public-health emergency:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (“quarantined employee”)
- They have been exposed to the coronavirus or exhibit symptoms of it.
- They are recommended to quarantine by a healthcare provider and cannot work from home.
- They need to care for a family member who has been exposed to or exhibits symptoms of the coronavirus.
- They are unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
- Exception for Health Care Providers and Emergency Responders. Employers who are health care providers or emergency responders may elect to exclude their employees from the public health emergency leave provisions of the bill.
Emergency Family and Medical Leave Act Expansion
The FFCRA also contains an expansion of the FMLA to provide for leave needed for childcare purposes.
- Covers all employers with fewer than 500 employees.
- All full-time, part-time, and temporary employees who have been employed with an employer for 30 calendar days. There is no minimum number of hours worked required.
- Employees are required to give their employers as much notice as practicable when this type of leave is foreseeable.
- New paid leave under FMLA. This is calculated based on the number of hours the leave-taking employee would normally be scheduled to work, and the amount cannot be less than two-thirds the employee’s regular rate of pay.
- The FFCRA provides that this amount will not exceed $200 per day and $10,000 in total.
- Job Restoration: Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken FFCRA to the same or equivalent position upon the return to work.[1]
- FFCRA limits this rule for employers with fewer than 25 employees. In such circumstances, if an employee takes emergency leave, then the employer does not need to return the employee to their position if:
- The position does not exist due to changes in the employer’s economic or operating condition that affect employment and were caused by the coronavirus emergency;
- The employer makes “reasonable efforts” to restore the employee to an equivalent position; and
- If these efforts fail, the employer makes an additional reasonable effort to contact the employee if an equivalent position becomes available.
- The “contact period” is the one-year window beginning on the earlier of (a) the date on which the employee no longer needs to take leave to care for the child or (b) 12 weeks after the employee’s paid leave commences.
- An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
- FFCRA limits this rule for employers with fewer than 25 employees. In such circumstances, if an employee takes emergency leave, then the employer does not need to return the employee to their position if:
Emergency Paid Sick Leave Act
- FFCRA
leave is unpaid for the first 10 days.
- During this first 10 days, an employee may choose to substitute paid time off they have accrued under the employer’s policy, but the employer may not require the employee to use their paid leave.
- After the first 10 days of FFCRA leave the employer must provide paid leave for employees.
- Full Time Employees Pay Calculation: leave is calculated at two-thirds the employee’s regular rate of pay for the number of hours the employee would normally be scheduled to work. Full-time employees receive up to 80 hours.
- Non-Full Time Employees Pay Calculation: part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking FFCRA leave. Part-time employees receive up to the average number of hours of work they work over a two-week period.
- For absences related to the employee’s own care (A-C), the employee receives the greater of the employee’s regular rate of pay or the applicable minimum wage, but pay is capped at $511 per day or $5,110 in total.
- For absences to care for others (D-F), the employee receives two-thirds of the employee’s regular rate or the applicable minimum wage, but pay is capped $200 per day or $2,000 in total.
- Posting
Requirement: The law’s paid sick time provision
requires employers to post, in a public place on their premises, a notice to
employees informing of them of the FFCRA paid sick time available to them.
- An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.
- Also, please note that the effective date for the new paid leave and paid sick leave laws has been moved up to April 1st.
[1] An employer can terminate an employee, even while he or she is on leave or just returned, as long as the rationale for the termination was completely unrelated to the FMLA leave. However, we caution employers to make sure that the reasoning for separation is well documented.
Employer Tax Credits
Tax Credit/Government Reimbursement: Under the legislation, employers initially pay for the sick leave but are fully reimbursed by the federal government within three months through refundable tax credits that count against employers’ payroll tax.
Penalties and Enforcement
- Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217.
- The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.
- For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
Please contact an employment lawyer to help walk you through the legal changes occurring daily regarding the coronavirus (COVID-19) and employment.
Resources:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
https://www.congress.gov/bill/116th-congress/house-bill/6201/text
https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
https://www.businessinsider.com/coronavirus-paid-leave-bill-hr6201-means-employees-businesses-2020-3
https://www.dol.gov/agencies/whd/fmla/pandemic
