On March 18, 2020, the President signed into law The Families First Coronavirus Response Act (FFCRA). This new federal law includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Updated guidance on the FFCRA is available from the U.S. Department of Labor at https://www.dol.gov/agencies/whd/pandemic.
Q: What paid leave benefits are required under the new Families First Coronavirus Response Act?
A: Paid family and medical leave and paid sick leave related to COVID-19.
Q: Who is subject to paying leave for employees under the FFCRA?
A: Employers with fewer than 500 employees.
Q: Who is entitled to paid leave under the FFCRA?
A: Employees who have worked for the employer for a minimum of 30 days are entitled to paid family and medical leave. All employees (regardless of how long they have worked for the employer) are entitled to paid sick leave immediately upon the effective date.
Q: When does this new law on paid leave go into effect?
A: The FFCRA is effective on April 1, 2020 and will expire on December 31, 2020.
EMERGENCY PAID FAMILY AND MEDICAL LEAVE EXPANSION ACT
Q: What are the covered reasons for leave under the Emergency Paid Family and Medical Leave Expansion Act?
A: Covered employers must provide 12 weeks of leave for any “employee [who] is unable to work (or telework) due to a need for leave to care for the son or daughter 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.”
“Public health emergency” is defined as an emergency related to COVID-19. “School” includes elementary or secondary schools as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. § 7801). “Child care provider” is defined as a provider who provides child care serves on a regular basis for compensation.
Q: What are employers required to pay an employee who is eligible for leave under the Emergency Paid Family and Medical Expansion Leave Act?
The first 10 days of leave are unpaid. Employers may allow employees to substitute any other paid leave for these 10 days (for example, accrued vacation, personal, medical or sick leave). Employers may not mandate that employees substitute paid leave.
The next 10 weeks of leave are to be paid. Employees are entitled to be paid not less than 2/3 of their regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work. “Regular rate of pay” is determined under section 7(e) of the FLSA (29 U.S.C. § 207(e)).
Variable hour employees are entitled to be paid for the average number of hours worked over the past six-month period. For such employees who have worked for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
The paid leave described above is capped at $200 per day and a total of $10,000.
Q: Is there any notice requirement for employees?
A: In cases where the need for leave under this law is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
EMERGENCY PAID SICK LEAVE ACT
Q: What does the Emergency Paid Sick Leave Act require?
A: Full time employees are entitled to up to 80 hours of paid sick leave. Part time employees are entitled to be paid for the number of hours the employee works, on average, over a 2-week period. For part-time employees with variable hours, employers shall average the number of hours worked over the past six-month period. For such employees who have worked for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
Q: What are the reasons an employee may take leave under the Emergency Paid Sick Leave Act?
A: The following employees are eligible for paid sick leave:
- Employees subject to federal, state, local quarantine or isolation orders related to -COVID-19;
- Employees who have been advised by health provider to self-quarantine due to concerns related to COVID-19;
- Employees experiencing symptoms of COVID-19 and who have sought a medical diagnosis;
- Employees caring for a person who is subject to federal, state, or local quarantine or isolation orders related to COVID-19 or who have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Employees caring for a son or daughter whose school or place of care has been closed, or whose child care provider unavailable due to COVID-19 precautions; or
- Employees experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services in consultation with Secretary of Treasury and Secretary of Labor.
Q: What do employers have to pay employees taking this sick leave?
A: Employers must pay employees their regular rate of pay, or the minimum wage, whichever is greater, for leave taken for reasons 1-3 above. Employers must pay employees at 2/3rds of their regular rate of pay, or the minimum wage, whichever is greater, for leave taken for reasons 4-6 above. Employers must pay part time employees for the number of hours they would normally work during a two-week period. Variable hour employees are entitled to be paid for the average number of hours worked over the past six-month period. For such employees who have worked for less than a six-month period, employers shall use the reasonable expectation at time of hire of the average number of hours per day that the employee would normally be scheduled to work.
Paid sick leave it capped at $511 per day or a total of $5,110 for reasons 1-3 above and $200 per day or a total of $2,000 for reasons 4-6 above.
Q: What can employers require from employees who take this sick leave?
A: Employers may require their employees to follow their company’s reasonable notice procedures in order to continue to receive the benefit after the first workday an employee receives pay under this law.
There is also no carry-over of sick leave to the next year and no financial obligation to pay employees upon termination for sick leave not used.
Q: What are employers prohibited from doing under the Emergency Paid Sick Leave Act?
A: Employers must not:
- require an employee to find a replacement to cover for the employee;
- require an employee to use other employer provided paid leave first;
- discriminate or retaliate against an employee taking this leave;
- retaliate against an employee for making a complaint or for participating in, testifying in, or seeking enforcement in a proceeding related to any such action.
The Emergency Paid Sick Leave Act also does not preempt any federal, state or local law, existing employer policy, or collective bargaining.
Q: Are there any notice requirements under the Emergency Paid Sick Leave Act?
A: The sick leave law requires employers to post and to keep posted a notice of employee rights under this law in “conspicuous places on the premises of the employer where notices to employees are customarily posted.” An employer may satisfy its notice obligation by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website.
The Secretary of Labor has issued a model notice. https://www.dol.gov/agencies/whd/pandemic
TAX CREDITS & POTENTIAL EXCEPTIONS
Q: What are the tax credits mentioned in the Emergency Paid Family and Medical Expansion Leave Act and the Emergency Paid Sick Leave Act?
A: Covered employers qualify for 100 percent reimbursement for all wages paid up to the appropriate per diem and aggregate payment caps through tax credits.
The Secretary of the Treasury has issued guidance on the tax credits available to employers.
Q: Are there any exceptions under these new paid leave laws?
A: The Secretary of Labor has the authority to exclude certain health care providers. Companies with emergency responder workers may also elect to exclude employees from this leave.
The Secretary also has the authority to issue regulations providing exceptions for small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”
For the full text of the FFCRA: https://www.congress.gov/bill/116th-congress/house-bill/6201