FFCRA: Paid Sick Leave and Emergency Family Leave Overview and FAQs

This article was written by Attorney John Rather, a member of the firm’s Business Law Group.

In light of the tremendous consequences to business and individuals associated with the growth of the coronavirus COVID-19 (“Coronavirus”), Neider & Boucher, S.C. has recently published numerous materials which can easily be found on our website’s COVID Response Resource List.  Because the lessons learned by some could be invaluable for others, we will continue to try to address and share those lessons with our clients and our community.

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 that most small and medium-size businesses provide two new forms of paid leave to their employees for Coronavirus-related absences.

Quick Summary

What’s in the new law:

  • up to 2 weeks of paid sick leave for employees forced to miss work for certain Coronavirus-related reasons;
  • enhanced FMLA leave for employees who are unable to work because they are caring for a child whose school or childcare is closed due to Coronavirus;
  • 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 forms of employee leave mandated for certain employers:

  • Emergency Paid Sick Leave: up to 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 or to care for children whose school or daycare is closed due to Coronavirus or whose normal child care provider is not available due to Coronavirus.
  • Public Health Emergency Leave: an enhanced form of FMLA leave available to employees who must miss work in order to care for their children where regular child care/schooling is interrupted by the Coronavirus. Like traditional FMLA leave, the first 14 days are unpaid (but Emergency Paid Sick Leave may be used for these two weeks if applicable). However, unlike traditional FMLA, qualifying leave beyond 14 days is paid at 2/3 of the employee’s normal rate of pay.

 

Who it applies to:

Employers with less than 500 employees. Employers with fewer than 50 employees may be eligible for exemption from these requirements based on criteria to be set by the Department of Labor.

When:

The requirements take effect April 1, 2020 and expire at the end of 2020 unless extended by Congress.

 

Emergency Paid Sick Leave

Requirement

The FFCRA requires covered employers (those with less than 500 employees) to provide all employees with access to paid sick leave through the end of 2020 where an employee is unable to work (or remote work) for certain Coronavirus-related reasons. 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.

 Qualifying Reasons

Emergency Paid Sick is available to employees of covered employers who are unable to work (or telework) because:

  1. The employee is subject to a Federal, State or local quarantine or isolation order related to Coronavirus;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to Coronavirus;
  3. The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to the circumstances described above;
  5. 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 for the first 3 reasons stated above (those related to the employee’s own condition) 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 for 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 of emergency paid sick leave paid to any employee is capped at $511/day and $5,110 total.

 Notice Requirement

Covered employers must post and keep posted in conspicuous places a notice regarding this leave in the form provided by the DOL. DOL information about how to provide this required notice is here. A sample poster is here.

Practical Consideration

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

Requirement

The FFCRA requires covered employers (those with less than 500 employees) to provide all employees with up to 12 weeks of protected leave 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. This leave is available to any employee who has been with their employer for at least 30 days. Unlike traditional FMLA leave, any Public Health Emergency Leave beyond 14 days must be paid.

Qualifying Reason

This enhanced FMLA leave may be taken for only one reason: to care for their minor child(ren) whose school or daycare is closed, or their normal child care provider is unavailable, due to an emergency with respect to Coronavirus 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. Emergency paid sick leave (see above) can be substituted for this initial two weeks if applicable (if the reason for emergency paid sick leave is to care for a child).
  • 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 (up to 12 weeks total) at a rate of 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 $12,000 total.

Applicability

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 traditional FMLA. 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.

Potential Exemption for Certain Small Businesses

Employers, including nonprofit organizations, are exempt from providing Emergency Paid Sick Leave and Public Health Emergency Leave (enhanced FMLA leave) due to school or place of care closures or child care provider unavailability for Coronavirus related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption only if all of the following apply:

  1. The employer employs fewer than 50 employees;
  2. Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to Coronavirus related reasons; and
  3. An authorized offer of the business has determined that at least one of the following three conditions is satisfied:
  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

More guidance is likely to be forthcoming from the Department of Labor regarding how to claim this exemption, but employers are encouraged to thoroughly document why the exemption applies to them, including detailed financial information about how providing one or both forms of leave would impact the financial viability of the business as a going concern.

 

Practical Consideration

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.

Job Protection

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.

Frequently Asked Questions

(last updated 3/31/20)

 

  1. When are covered employers required to begin providing emergency paid sick leave and enhanced FMLA under the FFCRA??

The requirements go into effect on April 1, 2020 and continue through the end of 2020.

  1. Will the payroll tax credits in the FFCRA apply to paid sick leave provided to employees before April 1, 2020?

No. Emergency paid sick leave and enhanced FMLA provided in the FFCRA only applies to leave actually taken by employees on or after April 1, 2020. They do not apply retroactively.

  1. How should employers determine if they have under 500 employees and therefore are subject to the requirement to provide emergency paid sick leave and enhanced FMLA leave?

The number of employees is determined as of the date an employee’s leave is taken. If, for example, an employer had more than 500 employees as of April 1 (and therefore is not required to provide emergency paid sick leave or enhanced FMLA) but subsequently laid off enough employees such that is then had less than 500 employees, it would be required to provide emergency paid sick leave and enhanced FMLA leave only after its total number of employees dropped below 500 and only so long as its total count remained below 500 employees.

  1. How should employers determine eligibility for paid sick leave for part-time employees?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Hours should be calculated based on the number of hours the employee is normally scheduled to work. If normal hours scheduled are unknown, or if the part-time employee’s schedule varies, employers may use a six-month average. This includes overtime.

  1. Is there a cap on the amount for emergency paid sick leave and enhanced FMLA paid benefits?

Yes. Emergency paid sick leave is capped at $511/day or $5,110 total (per employee) for leave taken due to an employee’s own Coronavirus symptoms and $200/day or $2,000 total if taken to care for a family member with Coronavirus or to care for a child whose school or daycare is closed or childcare unavailable due to Coronavirus. Enhanced FMLA is capped at $200/day or $12,000 total over the entire 12 weeks of leave available (for both emergency paid sick leave and enhanced FMLA).

  1. Does a government “stay at home” or “shelter in place” order constitute a quarantine or isolation order for which paid sick leave must be provided?

No. Orders such as Wisconsin’s “Safer At Home” Order do not in themselves constitute a qualifying reason for emergency paid sick leave.

  1. Are employers required to provide emergency paid sick leave or enhanced FMLA if their office is closed?

Whether an employer is required to provide paid sick leave or enhanced FMLA depends on whether there is work available to the employee, including through telework, if offered by the employer. If a business is closed, including where due to a government order such as Wisconsin’s “Safer At Home” Order, but employees can continue teleworking, then paid sick leave and enhanced FMLA leave must still be provided if an employee is unable to telework due to qualifying Coronavirus-related reasons. However, if a business is closed and employees are furloughed or there is no work available to the employee, then they are not unable to work due to a qualifying reason and therefore are not entitled to paid sick leave or enhanced FMLA leave. This is true regardless of whether the business closes before or after April 1, 2020.

  1. Are furloughed employees entitled to paid sick leave or enhanced FMLA?

No. If an employee is completely furloughed because his or her employer does not have enough work for the employee, the employee is not unable to work for a qualifying reason under the FFCRA, and therefore is not entitled to paid sick leave or enhanced FMLA leave. However, such employees may be entitled to unemployment insurance benefits, including partial unemployment if the employee is working reduced hours.

  1. Can employees working reduced schedules use paid sick leave or enhanced FMLA for hours they are no longer scheduled to work?

No. Such employees are not prevented from working those hours due to a qualifying reason under the FFCRA, even if the reduction in hours was caused or otherwise related to Coronavirus (such a Coronavirus-related economic downturn). For example, if an employee previously worked 40 hours/5 days per week but has been reduced to 32 hours/4 days per week, the employee could not take emergency paid sick leave or enhanced FMLA leave for the 1 day he or she is not working, but could take one or both leaves if they are unable to work (or telework) due to a qualifying condition.

  1. What records should an employer keep regarding an employee’s use of paid sick leave or E-FMLA?

Employer should document the reason leave is being used, including any facts justifying its use (e.g. exhibiting symptoms, etc.). Employers also should maintain documentation typical for that they would for other FMLA leave. Assuming employers intend to take advantage of the tax credits offered by the FFCRA for payment of sick leave or E-FMLA, employers also should maintain documentation in the form required by the IRS in order to claim the tax credit.

  1. Do the requirements to provide emergency paid sick leave and enhanced FMLA leave apply differently to telework?

The FFCRA states that paid sick leave and enhanced FMLA leave are available where an employee cannot work or telework due to certain Coronavirus-related reasons. Telework is work for which normal wages must be paid. Employers are not required to let their employees telework. If an office is closed and employees are not permitted to telework, then, as noted above, employees’ inability to work is not for a qualifying reason and they are not entitled to emergency paid sick leave or enhanced FMLA leave. However, if an employer does allow employees to telework and they are unable to telework due to a qualifying reason, they may be entitled to emergency paid sick leave or enhanced FMLA leave. 

  1. Can employees be required to telework while in self-quarantine or after they have received a positive test for Coronavirus?

Whether an employee is unable to work due to a qualifying Coronavirus-related reason will be determined based on the employer’s normal policies and practices. An order to self-quarantine or a positive test in themselves may not be sufficient to warrant emergency paid sick leave (enhanced FMLA leave would not be available under such circumstances) if the employee is still, on a practical level, able to work based on the mutual assessment of the employee and employer. For example, if an employee returned from a high risk area for which self-quarantine is recommended by the CDC, the employee could still telework and thus would not be entitled to emergency paid sick leave if telework is offered by their employer, but would be entitled to such leave if telework is not offered. However, an employee that is experiencing the effects of Coronavirus such that they would normally take sick leave or PTO would likely also be deemed unable to work for purposes of the FFCRA as well.

  1. Can paid sick leave and enhanced FMLA be taken intermittently?

Yes, if the employer allows it and if the employee is unable to telework a normal schedule of hours due to a qualifying reason. In such a situation, the employee and employer may mutually agree that he or she may take emergency paid sick leave intermittently while teleworking. Intermittent leave may be taken in any increment provided that the employee and employer mutually agree. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and will support such voluntary arrangements that combine telework and intermittent leave. Intermittent emergency paid sick leave generally can only be used in relation to teleworking arrangements and not for onsite work unless the employer agrees otherwise.

  1. Are employees taking emergency paid sick leave or enhanced FMLA entitled to continue their group health benefits?

Yes. Because such employees are still employed and would be working but for a qualifying-reason, time for which emergency paid sick leave or enhanced FMLA leave is taken is counted the same as if the employee was still working for purposes of determining eligibility for and continuation of health insurance coverage. Employers are required to continue paying their portion of the costs of that coverage while employees are taking emergency paid sick leave or enhanced FMLA leave.

  1. Can employees use preexisting paid leave benefits (PTO) concurrently with emergency paid sick leave and enhanced FMLA, such as to supplement the amount of compensation received?

Only if employers agree to allow employees to do so, and in no circumstance can the total amount received for hours in which emergency paid sick leave or enhanced FMLA is taken exceed the employee’s normal wages. However, employers will not be entitled to tax credits available under the FFCRA for preexisting leave taken by employees, only for the portion that is taken as emergency paid sick leave or enhanced FMLA as permitted by the FFCRA.

  1. Can employers require employees to use PTO to supplement or apply concurrently with paid sick leave or E-FMLA leave?

No. Under the FFCRA, only employees may decide whether to use existing PTO.

  1. Can employers provide benefits or leave that is more generous than that provided by the FFCRA?

Yes. However, leave that exceeds or does not qualify as emergency paid sick leave or enhanced FMLA will not qualify for the tax credits provided by the FFCRA.

  1. Which employees of a covered employer are entitled to paid sick leave or E-FMLA?

The definition of “employee” for purposes of the FFCRA is the same as that applied by the FLSA under normal circumstances. There is no minimum length of employment required for emergency paid sick leave eligibility. However, an employee must have been employed for 30 calendar days in order to qualify for enhanced FMLA leave.

  1. Is the 12 weeks of enhanced FMLA leave in addition to the 12 weeks of traditional FMLA available to employees of qualifying employers?

No. Any enhanced FMLA taken pursuant to the FFCRA will reduce the 12 weeks of total FMLA available for that employee.

Emergency Paid sick leave is not a form of FMLA leave and will not reduce the 12 weeks of total FMLA available.

  1. Is an employee who opts to stay home from work out of fear they will contract Coronavirus at work entitled to emergency paid sick leave?

No. Emergency paid sick leave is only available where:

  1. The employee is subject to a Federal, State or local quarantine or isolation order related to Coronavirus;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to Coronavirus;
  3. The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to the circumstances described above;
  5. 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.

 

The guidance provided above is general in nature and readers are encouraged to reach out to Neider & Boucher, S.C., or to their own legal counsel to determine the applicability of these issues to their own personal and/or business needs.

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.