Signed into law on March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) requires covered employees to provide paid leave to workers who are absent from work due to certain COVID-19 related reasons.  The FFCRA applies to employers with fewer than 500 employees.  The FFCRA takes effect on April 1, 2020, and applies to leave taken between April 1, 2020, and December 31, 2020.  This post summarizes the main provisions of the FFCRA.

Many issues that employers will face when complying with the FFCRA will require specific legal attention. The material provided in this blog is for informational purposes only and does not constitute legal advice.  Goldenberg Heller & Antognoli, P.C. has a team of skilled business and commercial legal experts who can help navigate the complexities of the law in this rapidly changing environment. Feel free to contact us with your legal needs today.

Emergency Paid Sick Leave Act

• The FFCRA includes the Emergency Paid Sick Leave Act (“EPSLA”) which mandates that employees be paid for up to two weeks if they are unable to report to work for coronavirus-related reasons.
• The United States Department of Labor has explained that an employee qualifies for paid leave under the EPSLA if the employee is unable to work (or telework) due to a need for leave because the employee:

1. 1. 1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
      2. Has been advised by a health care provider to self-quarantine related to COVID-19;
      3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
      4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
      5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
      6. Is experiencing any substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

• Full-time employees are entitled to up to eighty hours (two weeks) of leave under the EPSLA. Part-time employees can take the average number of hours they worked during a two-week period in the previous six months.
• If employees are unable to report to work for reasons 1-3, employees are entitled to pay at their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate.
• If employees are unable to report to work for reasons 4-6, employees are entitled to pay at 2/3 their regular rate or the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate.
• Employers cannot force employees to use accrued paid time off, sick leave, or vacation pay in lieu of the benefits provided by the EPSLA. Employees may elect, however, to use any accrued paid time off, vacation pay, or sick leave in lieu of the leave afforded by the EPSLA.
• The EPSLA contains an anti-retaliation provision, which prohibits employers from retaliating against employees who exercise their rights under the EPSLA.

Emergency Family and Medical Leave Expansion Act

• The FFCRA also includes the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which temporarily expands the Family Medical Leave Act (FMLA).
• The EFMLEA only applies to employees who have been employed for thirty days or more
• Employees are entitled to leave under the EFMLEA if they are caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
• Leave under the EFMLEA is available for a period of 12 weeks. The first two weeks of leave may be paid leave pursuant to the EPSLA and the remaining 10 weeks will be paid leave pursuant to the EFMLEA.
• Under the EFMLEA, employees are entitled to pay at 2/3 their regular rate or the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over the 12-week period).

• Employers cannot force employees to use accrued paid time off, sick leave, or vacation pay in lieu of the benefits provided by the EFMLEA. Employees may elect, however, to substitute accrued vacation or sick time for the leave provided under the EFMLEA.

• Leave under the EFMLEA is subject to the provisions of the FMLA requiring employers to restore employees to their prior positions at the conclusion of the leave period. Some exceptions to these requirements are available for employers whose business has been adversely affected by COVID-19.

• Leave under the EFMLEA is subject to the anti-discrimination and anti-retaliation provisions of the FMLA.

Tax Credits

• Employers subject to the EPSLA and/or the EFMLEA’s requirements will be reimbursed for the costs of complying with the enactments’ provisions in the form of refundable payroll tax credits.

Exemptions

• Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the requirement would jeopardize the viability of the business as a going concern. Regulations regarding the availability of such exemptions are expected to be issued by the Department of Labor in April.

Notice Requirement

• The FFCRA requires employers to post a notice from the Department of Labor informing employees of their expanded rights under the new enactment.
  • The poster can be found at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
• The poster must be posted in a conspicuous place on the employer’s premises.
• For employers whose employees are teleworking, an employer can satisfy its notice obligation by direct mailing or emailing the notice to its employees or by posting the notice on an employee information internal or external website.

The Coronavirus (COVID-19) Outbreak raises an array of legal issues for businesses. This Fact Sheet provides an overview of some of the key legal issues that Goldenberg Heller & Antognoli, P.C., is monitoring. Updates will be made as they become available. If you have questions about the applicability of any of these issues to your business, we stand ready to assist.

Workplace Safety

• Guidance on preparing workplaces for COVID-19 is available from the United States Department of Labor via the following link: https://www.osha.gov/SLTC/covid-19/.

Employee Leave – The Families First Coronavirus Response Act

• The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020, and will take effect on April 1, 2020.

• The FFCRA contains two new federal laws requiring employers with less than 500 employees to provide paid leave for certain COVID-19 related absences.

• Employers will be provided with refundable tax credits to offset the costs associated with complying with these new laws.

• Small businesses with fewer than 50 employees may qualify for exemption from required leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

• The Department of Labor will be releasing a model poster regarding the FFCRA that covered employers will be required to post in a conspicuous location.

Employee Compensation

• The federal Fair Labor Standards Act and state law impose various requirements on employers with respect to employee pay.

• These statutes may bear on the payment of final compensation to separated workers and the payment of compensation to workers whose hours have changed as a result of COVID-19.

Unemployment Insurance Benefits

• Employees who are temporarily laid off because of COVID-19 may qualify for unemployment insurance benefits.

• Information on unemployment insurance benefits for Illinois workers is available via the following link: https://www2.illinois.gov/ides/Pages/COVID-19-and-Unemployment-Benefits.aspx.

• Information of unemployment benefits for Missouri workers is available via the following link: https://labor.mo.gov/COVID-19.

Americans with Disabilities Act

• The Americans with Disabilities Act (“ADA”) requires that employers make reasonable accommodations for employees with disabilities.

• Under some circumstances, the ADA may require that employers provide “reasonable accommodations” to employees in connection with COVID-19.

• The ADA may also bear on communications with employees about COVID-19.

Workers’ Compensation

• COVID-19-related illness may give rise to workers’ compensation claims if COVID-19 is contracted during the course and scope an employee’s employment.

• Assessing such claims will require an inquiry into the particular facts and circumstances of the employee’s employment and his or her contraction of COVID-19.

Insurance Coverage

• Various forms of insurance, including event cancellation insurance, business interruption insurance in commercial property policies, and general liability insurance may be available to mitigate losses arising from the COVID-19 outbreak.

Contracts

• COVID-19 may raise a number of issues relating to parties’ rights and obligations under their contracts, including whether the COVID-19 outbreak will trigger “force majeure” clauses.

Relief Programs for Businesses

• The Small Business Administration is offering loan resources to certain small businesses adversely affected by COVID-19. Information on such loan resources is available via the following link: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources.

• The Illinois State Treasurer’s Office has announced that it will make available $250 million to Illinois banks and credit unions for the purpose of offering low-interest bridge loans to certain Illinois small-businesses and non-profits. Details regarding this program are available via the following link:  https://www.illinoistreasurer.gov/Invest_in_Illinois/Small_Business_COVID-19_Relief_Program.

• Relief loans and grants may also available through the Illinois Department of Commerce and Economic Opportunity. Information on such programs is available via the following link: https://www2.illinois.gov/dceo/SmallBizAssistance/Pages/EmergencySBAIntiatives.asp.

Labor Relations & Collective Bargaining Agreements

• The COVID-19 pandemic has given rise to concerns regarding labor relations, particularly with respect to changing unionized employees’ work schedules or duties, and employees striking or otherwise refusing to perform work as scheduled.

Mandatory Business Closures and Event Restriction

As of March 30, 2020, the following mandatory closures and event attendance limits have been put into place in Illinois, Missouri and the St. Louis Metropolitan Area:

• Illinois

  • Shelter-in-Place Order

    • Illinois has ordered residents to shelter in place beginning March 21, 2020 at 5:00pm. This order will continue through April 30, 2020.

    • Persons may leave their homes or place of residence only for Essential Activities (such as seeking medical services, obtaining medical supplies, going to the grocery store), Essential Governmental Functions, or to operate Essential Businesses and Operations.

• • All businesses and operations in the State, except Essential Businesses and Operations, are required to cease all activities within the State except Minimum Basic Operations (meaning the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions).

  • Businesses may continue remote operations.

  • All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited.

  • Any gathering of more than ten people is prohibited unless otherwise exempted.

  • All travel, including, but not limited to, travel by automobile, motorcycle, scooter, bicycle, train, plane, or public transit, except Essential Travel and Essential Activities is prohibited.

  • Examples of “Essential Businesses and Operations” include:

    • Healthcare and Public Health Operations

    • Human Services Operations

    • Essential infrastructure (i.e. food productions, distribution, and sale; construction; building management and maintenance; utility operations)

    • Stores that sell groceries and medicine

    • Food, beverage, and cannabis production and agriculture

    • Organizations that provide charitable and social services (such as food banks, shelters)

    • Media

    • Gas stations and businesses need for transportation

    • Financial institutions

    • Hardware and supply stores

    • Critical trades (i.e. plumbers, electricians, security staff, cleaning and janitorial staff)

    • Mail, post, shipping, logistics, delivery, and pick-up services

    • Educational institutions

    • Laundry services

    • Restaurants for consumption off-premises

    • Stores that sell supplies to work from and supplies for Essential Businesses and Operations

    • Transportation

    • Home-based care and services

    • Residential facilities and shelters

    • Professional services (i.e. legal services, accounting services)

    • Day care centers for employees exempted from the shelter-in-place order

    • Manufacture, distribution, and supply chain for critical products and industries

    • Critical labor union functions (i.e. administration of health and welfare funds)

    • Hotels and motels

    • Funeral services

• Missouri:

  • Missouri is restricting any gatherings statewide to no more than 10 people.

  • Casinos have been instructed to close through March 30, 2020.

• St. Louis Metropolitan Area:

  • In St. Louis City, St. Louis County, and St. Charles County, all bars have been ordered to close. Restaurant services have been limited to delivery, carry out, and curbside services only. Customers will not be allowed in dining rooms and bars. This ban and limitations will take effect beginning the evening of March 19 and will continue for an undetermined period of time.

  • St. Louis and St. Louis County will require people to shelter-in-place beginning Monday, March 30, 2020. Residents will still be able to go to the grocery store and pharmacy, and will be able to walk in public parks

Goldenberg Heller & Antognoli, P.C. has a team of skilled business and commercial legal experts who can help navigate the complexities of the law in this rapidly changing environment. Feel free to contact us with your legal needs today.