On Tuesday, March 24, the US Department of Labor supplemented its CORONAVIRUS RESOURCES by issuing several key helps for most public and private employers with fewer than 500 employees:
- INITIAL GUIDANCE ON FFCRA
- FACT SHEET FOR EMPLOYEES
- FACT SHEET FOR EMPLOYERS
- 14 FAQS ON THE FFCRA
- THE EMPLOYEE NOTICE that all covered employers must post by 4/1.
This action was expedited in an unusual way by the COVID-19 pandemic, responding to President Trump’s signing into law the Families First Coronavirus Response Act (“FFCRA”) on Wednesday, March 18, 2020. The FFCRA covers a wide range of topics, but the elements that are most relevant to both business and nonprofit employers are
- The Emergency Family and Medical Leave Expansion Act, which makes Amendments to the Family and Medical Leave Act of 1993 (the “FMLA”);
- The Emergency Paid Sick Leave Act; and
- Tax Credits for Paid Sick and Paid Family and Medical Leave.
Both the Emergency Family and Medical Leave Expansion Act’s provisions and the Emergency Paid Sick Leave Act’s provisions of the FFCRA apply primarily to private employers with fewer than 500 total employees (as well as to certain public employers). Employers with fewer than fifty employees may seek an exemption from the U.S. Department of Labor where the imposition of certain aspects of the paid sick leave requirements “would jeopardize the viability of the business as a going concern.”
These provisions of the FFCRA are not retroactive but apply beginning on April 1, 2020 , and expire on December 31, 2020.
Emergency Paid Sick Leave
Under the Emergency Paid Sick Leave Act, covered employers must provide eligible employees with eighty hours (two weeks) of paid sick leave for certain absences from work due to the COVID-19 pandemic. Part-time employees must be provided with paid sick leave equal to the number of hours that the part-time employee works over a two-week period. The paid sick leave must be available immediately when the FFCRA becomes effective on April 1, 2020, without regard to how long the employee has been employed by the employer. This emergency paid sick leave is in addition to and cannot be in lieu of any other statutorily provided or employer-provided paid sick leave benefits. Employers must allow employees to use this emergency sick leave before other sick leave.
The FFCRA recognizes six possible reasons that an employee may use this paid sick leave when the employee cannot work or telework:
- The employee is subject to a federal, state, or local government quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care 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 someone who is subject to either a quarantine or isolation order under #1 above or who has been advised to self-quarantine as in #2 above;
- The employee is caring for a son or daughter if the child’s school or place of care is closed or the child’s childcare provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (in consultation with the Secretary of Treasury and the Secretary of Labor).
Note that business closures or shutdowns are not included among the reasons that such paid sick leave can be used.
If the sick leave is used for reasons (1) through (3), the employer must pay the employee at their regular rate of pay, subject to a cap of $511 per day and an aggregate total of $5,110. If the sick leave is used for reasons (4) through (6), the employer must pay the employee at two-thirds (2/3) their regular rate of pay, subject to a cap of $200 per day and an aggregate total of $2,000.
There are no certification requirements for such leave. But after the first workday when an employee has taken this paid sick leave, the employer may require that the employee follow reasonable notice procedures. Employees cannot carry over any of this sick leave into the next year and are not paid or otherwise compensated for this leave upon termination of their employment with the employer. The FFCRA protects employees against retaliation for taking such paid sick leave. The employer may not discharge, discipline, or in any other manner discriminate against an employee taking such leave.
If the employer fails to provide this paid sick leave, the employer may be subject to certain penalties under the Fair Labor Standards Act (“FLSA”), such as being required to pay back pay and also damages equal to the amount of back pay due. Covered employers must post a notice about this paid sick leave in a conspicuous place in the workplace. The U.S. Department of Labor has provided a model notice in both English and Spanish.
The Emergency Family and Medical Leave Expansion Act provisions of the FFCRA require that employers provide at least twelve (12) weeks of expanded family and medical leave for certain absences from work related to the COVID-19 pandemic. All employees who have worked for at least thirty (30) days for the employer are eligible to use this FMLA leave. The leave must be available immediately to all such eligible employees (beginning on the April 1, 2020 effective date of the FFCRA).
The expanded family and medical leave is available where an employee is unable to work or to telework because they must care for a child whose primary or secondary school or place of care has been closed or whose child-care provider is not available because of a public health emergency that the government has declared with respect to the COVID-19 pandemic.
The first ten (10) days of this FMLA leave would be unpaid, but the employee must be allowed to substitute available accrued vacation time, medical or sick leave, or other paid time off. However, an employer cannot require that the employee make such a substitution.
For the remainder of the twelve (12) week paid leave period, the employee must be paid at least two-thirds (2/3) of their regular rate of pay for each day of such FMLA leave. There is a cap on such leave payments of $200 per day and a total of $10,000.
In general, the employee’s position is protected while the employee is taking this FMLA leave as the normal FMLA rights regarding restoration to the employee’s position continue to apply to this emergency family and medical leave. But the employee’s rights under the FFCRA to restoration to their position or an equivalent position are no greater than those of employees not taking such leave and the FFCRA addresses what sort of “reasonable efforts” an employer must make in such circumstances. The FFCRA also creates a hardship exception for smaller employers with fewer than twenty-five employees.
Tax Credits to Reimburse for Emergency Leave
The FFCRA also provides for federal funding or reimbursement for these significantly expanded paid sick leave and expanded family and medical leave requirements. However, some small business associations are lamenting that it may be too little too late since initially these benefits must be bankrolled by each employer. Covered employers are to be reimbursed for the full amount of the paid leave provided within three months in the form of a payroll tax credit. This reimbursement is also supposed to cover the employer’s contributions to health insurance premiums during the employee’s covered leave.
Further details regarding the implementation of the FFCRA are likely to be issued over the coming weeks. If you have questions about how the FFCRA may be applicable to your organization, please contact Scott Ward or Steve King .