Client Alert
Q&A: How Does the Families First Coronavirus Response Act Affect Your Organization?
March 26, 2020
By:
On March 18, 2020, Congress passed, and the President signed, the Families First Coronavirus Response Act (FFCRA), which requires most employers with fewer than 500 employees to provide paid leave to employees affected by the COVID-19 pandemic. The FFCRA actually consists of two separate acts that provide paid leave to employees. The first act, the Emergency Paid Sick Leave Act (EPSLA), amends the Fair Labor Standards Act (FLSA) and provides paid short-term leave of up to 80 hours for reasons related to COVID-19. The second, the Emergency Family and Medical Leave Expansion Act (EFMLEA), amends the Family Medical Leave Act (FMLA), and provides longer term leave of up to 12 weeks, 10 of which are paid. However, as discussed below, EFMLEA leave is only provided in certain limited circumstances. The FFCRA becomes effective on April 1, 2020 and terminates on December 31, 2020.
The Emergency Paid Sick Leave Act
EPSLA provides up to two weeks of sick pay for employees who miss work for certain reasons related to COVID-19. Below is a summary of the material provisions of this act:
Which employers are covered?
EPSLA applies to private employers who have 500 or fewer employees, and any public employer with at least one employee.
Which employees are covered?
All full- and part-time employees are eligible for EPSLA paid leave, regardless of how long they have been employed with the organization.
How is part-time employee coverage calculated?
Part-time employees are also covered under EPSLA, however, they receive paid leave for the number of hours they work, on average, over a two-week period.
What events trigger coverage?
EPSLA provides paid sick leave for employees who are unable to work (or telework) for the following reasons:
(1)The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
(4) The employee is caring for an individual who is subject to a local quarantine or isolation order or has been advised by a health care provider to self-quarantine;
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions; or
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
How much do employees get paid?
The amount a person is paid depends on several factors. If sick leave is being taken for reasons (1)-(3) above, employees are entitled to their regular pay, up to $511 per day, or $5,110 in the aggregate. If sick leave is being taken for reasons (4)-(6) above, they are entitled to either two-thirds pay or minimum wage, whichever is higher. Employers are only required to pay a maximum of $200 per day, or $2,000 in the aggregate.
How do you provide this information to employees?
Each employer must post a notice in conspicuous places on the premises, where notices are customarily posted, setting forth the requirements of the EPSLA. A copy of a sample notice can be located here. Additionally, employers should modify their employee handbooks to include this leave.
Can my employer require an employee to use other paid leave before FLSA?
Employers cannot require an employee to use other paid leave prior to using EPSL.
Can EPSLA leave be carried over for payment upon termination?
EPSLA leave cannot be carried over to the following year. Additionally, such paid leave does not need to be paid out when an employee leaves his/her employment or is terminated.
Are there any exemptions to this law?
EPSLA gives the Department of Labor (DOL) the right to exempt small businesses with fewer than 50 employees when it “would jeopardize the viability of the business as a going concern”.
Can you take negative employment action against an employee who takes this leave?
An employer cannot retaliate against an employee who takes EPSL.
What are the penalties if an employer does not comply with this act?
Any employer who fails to pay required sick leave under this act shall be in violation of the FLSA. The DOL’s Wage and Hour Division has the authority to investigate and enforce compliance with the FFCRA.
The Emergency Family and Medical Leave Expansion Act
EFMLEA amends the FMLA to provide up to 12 weeks of leave, 10 of which are paid at two-thirds pay.
It requires employers with fewer than 500 employees to provide this leave to employees who are unable to work because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19.
Who is eligible?
Unlike FMLA, EFMLEA covers employees who work for employers with fewer than 500 employees and who have been on the job for a minimum of 30 days.
What circumstances trigger EFMLEA Leave?
Coverage under EFMLEA is triggered only when the employee is unable to work (or telework) because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19. The child must be under the age of 18. This leave is not available if the employee is sick with COVID-19.
What type of paid leave is available?
EFMLEA provides 12 weeks of leave. While the first two weeks of this leave are unpaid, paid leave will likely be available to an employee under EPSLA during this time period. After the first two weeks, the employee will receive two-thirds of his/her usual pay, with a cap at $200 per day.
Does an employer have to hold a person’s job open during this leave?
Generally, employees who take EFMLEA leave are entitled to be restored to the position they held before leave was taken. However, for employers who have fewer than 25 employees, an employer does not need to return the employee to his/her position if:
- The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment, and were caused by COVID-19;
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
- If the reasonable efforts of the employer to restore the employee to an equivalent position fails, the employer makes reasonable efforts during the “contact period” to notify the employee if an equivalent position becomes available. The EFMLEA states that the “contact period” is the one-year period beginning with the date on which the qualifying need related to a public health emergency concludes; or the date that is 12 weeks after the date on which the employee’s leave commences.
Are there any exemptions to this law?
The Secretary of Labor has the authority to exempt small businesses with fewer than 50 employees from the bill’s paid leave requirements if those requirements would jeopardize the viability of the business.
Tax Credits for Employers
The FFCRA provides tax credits to employers to offset the costs associated with the paid leave. These tax credits will offset the employer’s share of social security taxes. These credits are only available to those employers that are required to offer these benefits under the FFCRA.
What should employers do next?
Employers should amend their employment policies now so that they adhere to these new laws. They should also post proper notices in the workplace as soon as possible. Currently, many offices are closed or working with minimal staff. Therefore, we recommend that employers e-mail the FFCRA notice to all employees.
If you need any assistance in drafting your leave policies or notice, we recommend contacting your attorney. Finally, many states are considering providing additional paid leave to employees. Make sure you are continuing to comply with state and local leave requirements.
If you have any questions regarding the FFCRA, please contact GKG Law Principal Rich Bar or Principal Katie Meyer.