March 31, 2020
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:
- Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- Has been advised by a health care provider to self-quarantine related to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- 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
- 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.
- 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.
- 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.
- 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.