The Families First Coronavirus Response Act
An Employer's Guide to Basic Provisions and Available Resources
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law. The US Department of Labor (DOL) has announced that the law becomes effective today, April 1, 2020. By its terms, the requirements of the FFCRA will expire on December 31, 2020. The specific provisions of the FFCRA can be found here. Today, we will discuss two important aspects of this Act: The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
The Emergency Paid Sick Leave Act (EPSLA)
The EPSLA provisions of the FFCRA require private employers with less than 500 employees to provide paid sick leave for employees having to take time off for certain Coronavirus related reasons.
Covered Employers: As set forth above, the provisions of the EPSLA apply to private employers with less than 500 employees. In counting the number of employees to determine if the law applies to them, employers should include both full and part time employees, employees who are on leave, temporary employees and day laborers supplied by a temp agency. Independent contractors, however, are not included in this count.
Covered Employees: The paid sick leave requirements of the EPSLA apply to all employees, whether they are part time, full time, hourly or salaried employees, and regardless of how long they have been employed by their employer.
Required Sick Leave: Under the EPSLA, covered employers must give their employees paid sick leave as follows:
Two weeks, (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because:
1. The employee is subject to federal, state or local quarantine or isolation order(s) related to the Coronavirus;
2. The employee has been advised by a health-care provider to self-quarantine due to concerns related to the Coronavirus; or
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Two weeks, (up to 80 hours) of paid sick leave at two-thirds of the employee’s regular rate of pay where the employee is unable to work because:
4. The employee is caring for an individual who is subject to a quarantine order, or has been advised to self-quarantine;
5. The employee is caring for a child whose school or daycare has been closed, or their child care provider is unavailable, due to Coronavirus precautions; or
6. The employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
Except for reason number 5 above, to be discussed further below, part time employees are eligible for leave in the amount of the number of hours they work on average over a two-week period.
An employee is not entitled to paid sick leave if they are able to telework. Thus, an employee who is subject to a quarantine order or has to self-quarantine, is not entitled to paid sick leave if he/she can still work from home.
If an employee has available vacation or sick leave time, the employee may first use the paid sick time available to him/her under the EPSLA. An employer may not require their employees to use other paid leave first before using their allowed time under this Act. An employer also may not require, as a condition of the paid sick time, that the employee search for or find a replacement employee.
Regular Rate of Pay: If an employee takes leave for reason 1, 2 or 3, above, the employee shall be paid at either their regular rate of pay, or the applicable minimum wage, whichever is higher, but no more than $511 per day and $5,110 total (i.e. over a two week period).
If an employee takes leave for reason 4, or 6, above, they are entitled to 2/3 their regular rate of pay, or 2/3 the applicable minimum wage, whichever is higher, but no more than $200 per day and $2,000 total.
If an employee’s pay fluctuates, such as employees who receive commission, their regular rate is calculated based on the average weekly pay received over the past six months, including any wages, tips and commissions. If they have worked for less than six months, their average is calculated based on however much time they have worked to date.
Emergency Family and Medical Leave Act
The EFMLA is part of the FFCRA and expands the provisions of the Family Medical and Leave Act. Under these provisions, private employers with less than 500 employees must provide employees up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or daycare is closed, or whose childcare provider is unavailable due to Coronavirus concerns.
This requirement only applies to employees who have been employed with the employer for at least 30 days. Employees taking extended family leave for this reason (also reason 5 above), may be entitled to both the two weeks of paid leave under the EPSLA, and an additional 10 weeks of paid leave under the EFMLA, for a total of 12 weeks. Employees taking such leave must be paid 2/3 their regular rate, or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in total (i.e. over a 12 week period – 2 weeks of paid sick leave plus 10 weeks of family and medical leave). Finally, the rate of pay for part time employees taking leave for this reason, (whether sick leave or family and medical leave), is calculated based on the number of hours that the employee is normally scheduled to work over that period.
Other Protective Provisions:
Employees returning from leave under these provisions must be given their job back or a “nearly equivalent” position. Also, employers may not discharge, discipline or otherwise discriminate (i.e. retaliate) against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA, or who files a complaint or other proceeding related to this Act.
Possible Limited Exception for Small Business:
The Act does direct the DOL to issue regulations exempting businesses with 50 or fewer workers from the requirements of the FFCRA to provide paid leave for employees caring for a child due to school or daycare closing, or because a child care provider is unavailable, due to Coronavirus precautions, to the extent these requirements will jeopardize their business.
The DOL currently recommends that businesses need to document why these requirements may jeopardize their business. Regulations regarding this issue, however, are still forthcoming.
Employer Recovery:
Employers covered by the law can seek reimbursement of any qualifying wages they pay under the FFCRA through tax credits. Employers can also seek tax credits for amounts paid or incurred to maintain health insurance coverage for employees on leave under the FFCRA.
Notice to Employees
The DOL has created a poster notice of the FFCRA requirements, which can be obtained at the DOL’s Wage and Hour Division, and must be placed in a conspicuous place at the workplace. For businesses now shutdown where employees are working from home, the employer can satisfy this requirement by emailing or direct mailing the notice to its employees, or placing it on an employee information internal or external website. The DOL has also released a set of Frequently Asked Questions regarding the notice requirements of the FFCRA, which can be found here.
Enforcement:
The DOL appears to be giving employers a grace period within which to comply. On March 24, the DOL issued a memo to its field staff stating that the DOL will not bring enforcement actions through April 17, 2020, provided that the employer has made “reasonable, good faith efforts to comply with the Act.” The DOL defines “reasonable, good faith efforts” to mean that: 1) the employer remedies any violations, including making any affected employees whole as soon as practicable; 2) any violations were not “willful”; and 3) the employer provides the DOL with a written commitment to comply with the Act.
DOL Guidelines:
For more information, the US DOL has issued detailed fact sheets for both employers and employees regarding the provisions of these laws. The DOL has also issued a set of Questions and Answers pertaining to compliance with the various provisions of the FFCRA.