March 30, 2020   •   Articles, News

What You Need to Know about the New Paid Leave Requirements in the Families First Coronavirus Response Act

By Theresa M. Willard

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March 30, 2020   •   Articles, News

What You Need to Know about the New Paid Leave Requirements in the Families First Coronavirus Response Act

By Theresa M. Willard

The Families First Coronavirus Response Act (FFCRA), the second major legislative response to COVID-19, was signed into law on March 18, 2020. Its purpose is to provide emergency relief to individuals and families impacted by the coronavirus pandemic. Among other benefits, the FFCRA includes two new paid leave provisions of particular note for employers and employees. The first is the Emergency Family and Medical Leave Expansion Act. The second is the Emergency Paid Sick Leave Act. Both are limited in scope and specifically tied to COVID-19. Employers providing paid leave under the FFCRA will be reimbursed dollar-for-dollar through a refundable tax credit. Employers whose worksites are closed, whether for lack of work or in response to a governmental order, are not required to provide leave under the FFCRA while the worksite is closed.

Emergency Family and Medical Leave Expansion Act. This section of the FFCRA extends FMLA eligibility for a limited time to an employee who is unable to work—or telework—because they need leave to care for a minor child whose school or childcare provider is closed or unavailable due to COVID-19. The first ten days of leave under this section may be unpaid, but after the first ten days of leave under this section, the employee shall be entitled to up to ten additional weeks of paid leave at two-thirds his or her regular rate of pay. Pay for part-time employees taking leave under this section will be calculated based on the number of hours the employee ordinarily would have worked during that time. For employees whose pay includes tips and commissions, those wages are included in determining the employee’s regular rate of pay. If the employee’s regular rate is less than minimum wage, minimum wage will be used in place of regular rate. In any case, paid leave under this section will not exceed $200/day and $10,000 total. An employee may elect to use accrued paid time off (such as vacation time or sick time) during the initial ten-day period that might otherwise be unpaid.

FMLA Expansion Act at a glance:

Effective date:  April 1, 2020 through December 31, 2020.

Employers affected:  Employers with fewer than 500 employees.

Eligible Employees:  Any employee who has been employed by that employer for at least 30 calendar days.

Reason for Leave:  To care for minor child whose school or day care is closed or unavailable due to COVID-19.

Duration of Leave:  12 weeks. First ten days may be unpaid. Up to ten additional weeks paid at 2/3 regular pay, not to exceed $200/day and $10,000 aggregate.

Exemption:  Employers of healthcare providers and emergency responders may elect to exclude those employees from the new leave provisions.

Exemption:  Small businesses with fewer than 50 employees may claim an exemption if the leave requirements would jeopardize the viability of the business as a going concern. Employers claiming an exemption should document why they meet the requirements for an exemption.

Exemption:  Employers with fewer than 25 employees are not required to restore employees taking leave under this section to their original or an equivalent position following their leave, provided (1) the position no longer exists due to reasons related to COVID-19, (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and (3)  if no equivalent position is available, to make reasonable efforts to contact the employee if an equivalent position becomes available during the one year period following the date the employee’s leave ends or 12 weeks after the leave commences, whichever is earlier.

Emergency Paid Sick Leave Act.  This section of the FFCRA requires employers to provide paid sick leave to any employee unable to work (or telework) because:

(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 someone else who is subject to a quarantine or isolation order or is self-quarantined on the advice of a health care provider.

(5) The employee is caring for a son or daughter if the child’s school or care provider is closed or unavailable due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are entitled to up to 80 hours of paid leave under this section. The number of hours a part-time employee receives will be equal to the number of hours that employee works, on average, over a two-week period. The amount of sick pay under this section depends on the qualifying reason for leave. If the employee qualifies under the above reasons 1, 2, or 3 (that is, to care for self), employees, sick pay under this section is calculated based on the employee’s regular rate, up to a maximum of $511/day and $5,110 total. If the employee qualifies under reasons 4, 5, or 6 (to care for someone else), sick pay under this section is calculated based on two-thirds of the employee’s regular rate, up to a maximum of $200/day and $2000 total. If the employee’s regular rate is less than minimum wage, minimum wage will be used in place of regular rate. Sick leave under this section terminates when the qualifying reason for leave ends. Employers may not require an employee to exhaust other PTO before using their sick leave under this section, but employees eligible for the expanded FMLA leave (described above) may elect to use their paid sick leave under this section during the initial ten days of unpaid FMLA leave.

Emergency Paid Sick Leave Act at a glance:

Effective date:  April 1, 2020 through December 31, 2020.

Employers affected:  Employers with fewer than 500 employees.

Eligible Employees:  All employees.

Reason for Leave:  Quarantine or isolation by order or medical advice due to COVID-19; experiencing COVID-19 symptoms and seeking diagnosis; caring for someone else in quarantine or isolation by order or medical advice due to COVID-19; caring for child whose school or day care is closed or unavailable due to COVID-19.

Duration of Leave:  Up to 80 hours (two weeks).

Exemption:  Employers of healthcare providers and emergency responders may elect to exclude those employees from the new leave provisions.

Exemption:  Small businesses with fewer than 50 employees may claim an exemption from the requirement to provide sick leave to care for a child whose school or care provider is closed or unavailable due to COVID-19 (reason (5) above) if the leave requirements would jeopardize the viability of the business as a going concern. Employers claiming an exemption should document why they meet the requirements for an exemption.

About the Exemptions.

  1. Employers of healthcare provider and emergency responders may exclude those employees from paid leave under the FFCRA. The Department of Labor defines those terms very broadly. “Health care provider” includes anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity, as well as any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide products or services or to maintain the operation of the facility. It includes also any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19. “Emergency responder” is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of COVID-19 patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for facilities employing these individuals and whose work is necessary to maintain the operation of the facility. As with health care providers, this includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
  2.  Businesses with fewer than 50 employees may be exempt from providing paid leave to care for a child whose school or care provider is closed or unavailable if the leave requirements would jeopardize the viability of the business as a going concern. This exemption is available when an authorized officer of the business has determined that (1) providing paid leave would cause the employer’s expenses to exceed its revenues and the small business to cease operating at a minimal capacity; (2) the absence of the employees seeking leave would create a “substantial risk” to the employer’s financial health or operational capabilities because of the employees’ specialized skills, knowledge of the business, or responsibilities; or (3) there would not be enough qualified employees left to keep business operations going.

Document, document, document. Employers should require any employee requesting leave under the FFCRA to provide supporting documentation, including the qualifying reason for leave, documents supporting that reason (such as a quarantine order, or a doctor’s note, or a school notice), the employee’s statement that he or she is unable to work (including telework) because of that reason, the date(s) for which leave is requested, and any other relevant information. In addition, employers claiming an exemption should retain supporting documentation showing one or more of the exemption conditions are satisfied.

Reimbursement. Costs to employers will be offset by payroll tax credits equal to the amount of qualifying sick and child-care leave paid. Additional guidance on how reimbursement will work is expected in the coming days.

If you have questions about requirements or eligibility for the Families First Coronavirus Response Act (FFCRA), the experienced business attorneys at Plews Shadley Racher & Braun will gladly answer your questions and help you navigate through these challenging times.

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