This article was written by Attorney John Rather
The Families First Coronavirus Response Act (H.R. 6201) (FFCRA), signed into law March 18th, represents Congress’s initial efforts to address the impact of the coronavirus COVID-19 (“Coronavirus”) on many Americans. It includes nutritional assistance to vulnerable Americans, reduces financial barriers to Coronavirus testing, additional funding for state unemployment insurance programs, and, most important to small and mid-size businesses, mandates most small and medium-size businesses to provide two new forms of benefits to their employees for Coronavirus-related absences.
What’s in the new law:
- up to 2 weeks of paid sick leave for certain employees forced to miss work due to Coronavirus;
- enhanced protected leave for certain employees for similar purposes,
- waiver of copayments for Coronavirus testing,
- additional financial support for state unemployment insurance programs, and
- additional funding for SNAP and other nutritional support programs.
This article addresses the two new employee benefits mandated for certain employers:
- Emergency Paid Sick Leave: 80 hours of paid sick leave for employees who are forced to miss work for certain Coronavirus-related reasons, to care for a family member with Coronavirus and to care for children whose school or daycare is closed due to Coronavirus or their normal child care provider is not available due to Coronavirus.
- Public Health Emergency Leave: an enhanced form of leave typically associated with the Family Medical Leave Act (FMLA) available for the limited purpose of caring for children where regular child care/schooling is interrupted by the Coronavirus. Whereas traditional FMLA leave is unpaid, this enhanced leave dictates that the first 14 days of leave are unpaid, but if the leave extends beyond 14 days, then the employer must provide 10 weeks of paid, protected leave.
Who it applies to: These new benefits must be provided by employers with less than 500 employees.
Employers with fewer than 50 employees may be eligible for exemption from these requirements and more guidance on this will be forthcoming.
When: The requirements take effect April 2, 2020 and expire at the end of 2020 unless extended by Congress.
- Emergency Paid Sick Leave
The FFCRA requires covered employers (those with less than 500 employees) to provide all employees with paid sick leave through the end of 2020 where an employee is unable to work (or remote work) for Coronavirus-related reasons.
Covered employers are required to provide all employees with paid sick leave for certain Coronavirus-related absences. This leave must be in addition to any other paid time off provided by the employer, and employers are prohibited from changing their paid leave policies to offset this new benefit (e.g. by reducing other paid leave). Employers also are not allowed to require employees to take or exhaust any other employer-provided leave before taking emergency paid sick leave under the FFCRA.
Emergency Paid Sick Leave applies to employee absences because:
- The employee is subject to a Federal, State or local quarantine or isolation order related to Coronavirus;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to Coronavirus;
- The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to the circumstances described above;
- The employee is caring for their child(ren) due to school or daycare closure or unavailability of their normal child care provider due to Coronavirus.
Amount of paid sick leave
Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave. Part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period. Employees may take this leave regardless of the length of their service with their current employer.
Amount of Pay
- Employee Illness: Employees who take emergency paid sick leave due to their own Coronavirus-related reasons are to be paid no less than their “regular rate” of pay.
- Care for Others: Employees who take such leave to care for a sick family member or children due to a school or daycare closure are to be paid no less than 2/3 of their “regular rate” of pay.
- Maximum Amount of Per-Employee Sick Pay: The amount paid to any employee is limited to a maximum of $511/day and $5,110 total.
Covered employers must post and keep posted in conspicuous places a notice regarding this leave in the form provided by the DOL. The DOL also will be issuing additional guidance to help employer comply with this new law.
Covered employers should attempt to follow similar procedures as are customarily followed by existing FMLA, HIPAA, ADA, GINA, and other employment regulations in determining employee eligibility for paid sick leave. Employers are advised to take thorough notes and keep accurate records of any leave requests, grants or denials of leave, employee payment records, etc.
- Public Health Emergency Leave
The FFCRA requires covered employers (those with less than 500 employees) to provide all employees with up to 12 weeks of protected leave, some potentially paid, where an employee is forced to miss work to care for their children as a result of a school or daycare closure, or unavailability of their normal child care provider, due to Coronavirus any time before the end of 2020.
Covered employers are required to provide all employees who have been with their current employer for at least 30 days with up to 12 weeks of protected “Public Health Emergency Leave” for Coronavirus-related absences. Unlike traditional FMLA leave, any Public Health Emergency Leave beyond 14 days must be paid.
This enhanced FMLA leave may be taken for only one reason: to care for their minor child(ren) if their school or daycare is closed or their normal child care provider is unavailable due to an emergency with respect to COVID-19 declared by a Federal, State or local authority.
Unpaid vs. Paid Leave
- First 14 days. Covered employers may choose not to pay an employee for the first 14 days of this leave. Employees can choose to substitute accrued paid time off for the unpaid portion, but employers cannot require them to do so. It appears that the emergency paid sick leave discussed above can be substituted for the first two weeks of this (otherwise unpaid) Public Health Emergency Leave.
- Beyond 14 days. If an employee continues to be eligible for and takes this leave beyond 14 days, their employer must provide them with paid leave for the duration of that leave at a rate not less than 2/3 of the employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. The amount paid to an employee is limited to $200/day and $10,000 total.
Employees are eligible for this Public Health Emergency Leave if they have been employed by their current employer for at least 30 calendar days, far less than the 12 months of employment required to qualify for other FMLA leave. This enhanced FMLA leave applies to employers with fewer than 500 employees, including employers with fewer than 50 employees who do not have to provide traditional FMLA leave.
Employers who are not used to providing FMLA-related leave will need to become familiar with how to correctly administer this new type of leave. Of note, the bill allows, but does not require, the DOL to issue regulations “for good cause” to (1) prohibit certain health care providers and emergency responders from taking Public Health Emergency Leave; and (2) exempt small businesses with fewer than 50 employees when the imposition of the new leave requirements would jeopardize the viability of the business as a going concern. It is not yet known when or how such exemptions may be enacted, including whether employers will apply on an individual basis or whether the DOL may issue class-exemptions for businesses based on certain criteria.
The job protection requirements for this leave are similar to those for use of traditional FMLA. Mainly, employers must restore employees taking this leave to their previous position or an equivalent position upon their return. However, the FFCRA relaxes this requirement for employers who employ fewer than 25 employees under certain circumstances. Specifically, smaller employers do not need to restore an employee to his or her job following Public Health Emergency Leave if:
- The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave,
- The employer makes “reasonable efforts” to restore the employee to an equivalent position, and
- If the employer’s “reasonable efforts” fail, the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during the following year.
If you have questions about this new law or other questions about how to address other Coronavirus-related issues, call the team at Neider & Boucher. We’re here to help.
This article does not constitute legal nor tax advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.