By: Megan E. Ray
The Families First Coronavirus Response Act (FFCRA) passed the U.S. Senate by a vote of 90-8, on March 18, 2020 and was signed into law by the President later that same day. The full text of the law can be found here:
The FFCRA provides employees with paid sick leave through the use of two new laws, the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are effective through December 31, 2020.
Not later than 7 days after the date of enactment of this Act (which is 3/18/20), the Secretary of Labor shall make publicly available a model of a notice that each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted. Specific provisions of the FFCRA is outlined below.
The Emergency Family and Medical Leave Expansion Act (EFMLEA)
The EFMLEA amends the Family and Medical Leave Act of 1993 (FMLA) on a temporary basis to provide up to 10 weeks of protected PAID leave to eligible employees for a coronavirus related reason. This includes being unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to coronavirus.
Under the EFMLEA, the first two weeks of an employee’s FMLA leave remain unpaid, but for the next 10 weeks, eligible employees (those who have been employed with the employer for at least 30 calendar days) will receive two-thirds pay while on leave. If an employee has any paid personal, sick or medical leave days, they can use those paid leave days during the two weeks of unpaid leave under the EFMLEA.
The EFMLEA’s requirements apply to all employers with fewer than 500 employees and its benefits are only in effect until December 31, 2020.
The rights provided to employees under the FMLA, including prohibition on retaliation, apply to the EFMLEA.
The EFMLEA technically applies to businesses with fewer than 50 employees. However, a special provision in the Act gives the Department of Labor explicit authority to create regulations that would exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.
Under the traditional FMLA law, employees who take FMLA leave are entitled to restoration of the same or equivalent position upon return. FFCRA amends this requirement and instead states that this requirement shall not apply with respect to an employee of an employer who employs fewer than 25 employees if the following conditions are met:
- The employee takes leave under this act,
- 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 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.
- If the reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” to contact the employee if an equivalent position becomes available.
- The “contact period” means the 1-year period beginning on the earlier of
- 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.
- The “contact period” means the 1-year period beginning on the earlier of
- If the reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” to contact the employee if an equivalent position becomes available.
The Emergency Paid Sick Leave Act (EPSLA)
The EPSLA is the second law contained in the FFCRA that provides paid leave. Specifically, EPSLA provides full-time employees up to 80 hours (two weeks) of paid sick leave if they are unable to work at the office or from home because:
- the employee is quarantined, either by the government or a health care provider,
- the employee is experiencing symptoms and is seeking a diagnosis,
- the employee is caring for someone under quarantine,
- the employee is caring for a child because schools or places of care have closed, or
- the employee is experiencing conditions substantially similar to the symptoms exhibited by the coronavirus.
Part-time employees can also receive paid sick leave, but it will be limited to the average number of hours that the employee works over a two-week period. In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken leave under this Act, the employer shall use the following in place of such number:
- “A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
- If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
The amount of leave pay will be equal to the employee’s regular rate of compensation, unless the employee is caring for a child or family member affected by the coronavirus. In that case, it will be two-thirds of the employee’s regular pay. If the leave is used for themselves because the employee is quarantined or experiencing symptoms, the FFCRA requires the worker receive be paid the full rate of pay capped at $511 per day. If the employee is using the paid leave to care for someone else, the worker is entitled to two-thirds of the regular rate of pay capped at $200 a day.
Employees are required to provide notice as is practicable where the need for leave is foreseeable. Paid sick time provided to an employee under this Act shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time. Paid sick time under this section shall not carry over from one year to the next. An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
The paid sick time shall be available for immediate use by the employee for the purposes described in the Act, regardless of how long the employee has been employed by an employer. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.
The EPSLA also has provisions barring employers from discriminating in any way against an employee who takes advantage of benefits provided by the EPSLA. Employers are also prohibited from retaliating against an employee who files a complaint or initiates a proceeding under the EPSLA.
If an employer violates the EPSLA, it will be subject to penalties as outlined by the Fair Labor Standards Act (29 USC § 216-217). This includes fines, imprisonment, damages to the employee amounting to double the unpaid wages and reasonable attorney’s fees and court costs.
The EPSLA also exempts employers with 500 or more employees and sunsets on December 31, 2020. However, the EPSLA does not have a provision telling the Department of Labor to create regulations that would exempt small businesses, such as those with fewer than 50 employees.
Employer Reimbursement
The Act provides for a series of refundable tax credits for employers providing paid emergency sick leave or paid FMLA. The credits are as follows:
- A refundable tax credit for employers equal to 100 percent of wages required to be paid by the Emergency Family and Medical Leave Expansion Act that are paid by an employer for each calendar quarter.
- The tax credit is allowed against the tax imposed by section 3111(a) or 3221(a) (the employer portion of Social Security taxes).
- If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer.
- A refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter.
- The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).
These new laws take effect “on or before April 2, 2020”. If you have questions regarding how these new laws will affect your business, our team of employment lawyers would be glad to help.
