The Family First Coronavirus Response Act (FFCRA or Act) became law on March 19, 2020. The law must be implemented on or before April 2, 2020. This Act deals with growing health and economic concerns caused by the COVID-19 Pandemic. Key points included in the law and how they will effect employers and employees include the following:
- The law will be effective from April 2, 2020 through December 31, 2020 unless extended further.
- The law applies to public employers and private employers with less that 500 employees where the employee has been on the job for at least 30 days. These employees shall have a right of 12 weeks of job protected leave for a “Public Health Emergency.”
- A Public Health Emergency is defined as a situation where an employee is unable to work ( including the inability to telework) due to a need for leave to care for a son or daughter who is 18 years or younger if the school or place of care for such child has been closed or the child care provider for such child is unavailable due to an emergency with COVID-19 declared bya federal, state or local authority.
The FFCRA does not apply to employers of health care providers or emergency responders if the employer elects to exclude such employees from the leave.
The FFCRA does not apply to employers of less than 50 employees if the leave requirement “would jeopardize the viability of the business as a going concern.” The U.S. Department of Labor can provide regulations as to what would be the requirements to determine the qualifying conditions that would be deemed to ” jeopardize the viability of a business as a going concern.”
Paid vs. Unpaid Leave
- The first 10 days of leave from work for a Public Health Emergency can be unpaid ( unless an employee elects to use existing Personal Time Off (PTO). If an employee has available other paid leave from the employer then the employee can substitute that paid leave. However, an employer cannot require substitution of paid leave.
- After the first 10 days until the 12 weeks has expired, the employee is entitled to additional leave for a Public Health Emergency that shall be paid to the employee at rate equal to two-thirds (2/3) of the employee’s regular pay. The employee must be paid for the hours the employee would otherwise be normally scheduled to work. There is a cap on the pay to be paid to the employee of $ 200 per day and not greater than $10,000 in total. The provisions of the Emergency Paid Sick Leave Act, described below can apply during the initial 10 days.
- Employee benefits shall continue to accrue for the employee for the entire leave period.
Business Slowdown or Closure
If a business puts it employees on leave due to a decision to temporarily close or slow down operations, the leave would not be for a Public Health Emergency and therefore no family leave would be owed. As an employer it is important to be careful to avoid only placing on leave those employees who would qualify for leave under the FFCRA as this could lead to a claim for violation or interference with rights under the FFCRA.
Return to Work after Taking Leave
Employees who take leave under the FFCRA must be returned to their position (prior to taking the leave). However there may be special circumstances that do not obligate employers of less than 25 employees to comply with this requirement.
Emergency Paid Sick Leave Act
Public and Private employers with less than 500 employees must provide up to 80 hours of Emergency Paid Sick Leave to full time employees and the average number of hours worked over a two week period to part time employees. This paid leave benefit is available for immediate use, regardless of how long the employee has been employed by the employer.
This Emergency Paid Sick Leave can be used for any of 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 health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine order as described in subparagraph (1) above or is advised to self quarantine as described in subparagraph (2) above.
- The employee is caring for a son or daughter if the school or place of care for the son or daughter has been closed, or the child care provider for the son or daughter is unavailable due to COVID- 19 precautions, or
- The employee is experiencing a substantially similar condition specified by the Secretary of Health & Human Services, the Treasury Secretary or the Secretary of Labor
The amount of Emergency Paid Sick Leave depends on the employee’s classification. Full time employees get 80 hours of paid sick leave. Part-time employees get paid sick leave in the “number of hours that such employee works, on average, over a 2- week period. In the case of a varying schedule where an employer cannot determine the number of hours with certainty, the amount of paid sick leave is equal to a 6-month average (… the average number of hours, that the employee was scheduled per day over the 6-month period ending on the date which the employee takes the paid sick time, including hours for which the employee took leave of any type.) If the paid leave is being taken for the employee’s own condition (1-3 above), the employee must be paid their regular rate of pay subject to a cap of $511 per day and $ 5,110 in total. If paid leave is being taken to act as a caregiver ( 4-6 above) the employee must be paid 2/3 of their regular rate of pay (or minimum wage, whichever is greater) subject to a cap at $ 200 per day or $ 2,000 in total.
The paid sick leave provided by FFRCA is in addition to any employer provided PTO.
Employers cannot required that other paid leave be exhausted before the Emergency Paid Sick Leave provided under the FFRCA is taken by the employee. However, employers can now change their sick leave policies.
Exclusions to Emergency Paid Sick Leave Rule
The Emergency Paid Sick Leave rules do not apply to employers of health care providers or emergency responders if the employer elects to exclude such employees from this rule. The Secretary of Labor can issue regulations excluding “certain health care providers and emergency responders from the definition of employee” and allowing such employers to opt out. These regulations have not yet been drafted.
Employee is Furloughed or Placed on Unpaid Leave Because of Business Slowdown or Closure:
If a business puts its employees on leave because of a decision to temporarily close or slowdown operations, this would not qualify the employee for Emergency Paid Sick Leave.
Employers must post the notice of the FFCRA in a conspicuous place. If you need a copy of the Notice prescribed by the Secretary of Labor please contact our office.
An employer may not retaliate, discharge, or discipline an employee who takes leave under the FFCRA.
An employer who does not adhere to the FFCRA can face stiff penalties. The government can determine that an employer has not paid minimum wages or has engaged in an unlawful act under the Fair Labor Standards Act (FLSA) which can subject the employer to risks of an audit, fine or civil action.
Employers may not discharge, discipline, or in any other manner discriminate against any employee who:
- Takes leave in accordance with the FFCRA, and
- Has filed any complaint or instituted or caused to be instituted any proceeding under or related to the FFCRA ( including proceedings that seek enforcement of the Act), or
- Has testified or is about to testify in any such proceeding.
The FFCRA provides employers with the ability to seek tax credits “each calendar quarter for an amount equal to 100% of the qualified sick leave wages paid by such employer with respect to such calendar quarter. These tax credits will be subject to limitations.
This communication from Farina & Wojcik, P.C. is intended for general information purposes for our clients and friends. This article highlights a specific area of the the law and is not intended to convey legal advice. The reader should consult with an attorney to determine how this information applies to a specific situation.