On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA). Importantly, the FFCRA is actually two separate acts, each of which imposes different employer obligations: the Emergency Paid Leave Act (E-Paid Leave Act) and the Emergency Family and Medical Leave Expansion Act (E-FMLA). This Bulletin discusses these Acts, which take effect 15 days after the law is enacted.
The E-Paid Leave Act
The E-Paid Leave Act requires private employers who employ fewer than 500 employees, as well as government employers, to provide paid sick leave to employees who cannot work (or telework) for one of the following reasons:
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- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine;
- The employee is caring for a son or daughter because the child’s school or place of care has been closed or the child’s childcare is unavailable due to COVID-19 precautions;
- The employee is experiencing any other substantially similar condition specified by the Secretary of HHS in consultation with the Secretaries of the Treasury and Labor.
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The leave under the E-Paid Leave Act must be available to all employees and is in addition to leave already available under state and/or local laws. Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to paid leave equal to the average hours he/she works over a two-week period. There is no carryover from year to year and, once the employee returns to work, the employer is not required to provide any further paid sick leave under the E-Paid Leave Act.
The rate of pay depends on the reasons for leave from among the list above. If leave is for self-care (reasons 1, 2 or 3 above), the employee receives the higher of (1) the employee’s regular rate of pay, (2) the federal minimum wage, or (3) the local minimum wage. If time off is to care for a sick family member or a child who is not in school (reasons 4, 5 or 6), he/she receives two-thirds of their regular rate of pay.
There is a cap on E-Paid Leave Act amounts. For leave under reasons 1-3, the cap is $511 per day, up to an aggregate of $5,110. For leave under reasons 4-6, the daily cap is $200, up to an aggregate of $2,000.
Employers will be required to post an approved notice regarding the E-Paid Leave Act. To help employers cope with the financial burden of this additional leave, there are tax credits. The details of these credits are beyond the scope of this Bulletin and employers are encouraged to consult with their accounting professional to fully understand and take advantage of all available tax credits.
The E-FMLA Act
The E-FMLA Act expands the protections of the federal Family and Medical Leave Act (FMLA) to add Public Health Emergency Leave. Many smaller employers, with fewer than 50 employees, may be unfamiliar with the FMLA.
The E-FMLA Act expands coverage to include all employers with less than 500 employees, and is available to any employee who has been employed with the employer for at least 30 days. Unlike the ordinary FMLA, however, the E-FMLA is only available if an employee is unable to work (or telework) due to a need for leave to care for the employee’s child who is under 18 years of age because he child’s school or place of care has been closed or his or her childcare provider is unavailable due to a public health emergency.
The first 10 days of E-FMLA leave is unpaid, but an employee may elect or an employer may require the employer to substitute available vacation or paid sick leave (including E-Paid Leave Act pay) for the unpaid portion of E-FMLA leave. After 10 days, employers must pay at least two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work. For employees who have fluctuating working hours on a weekly basis, an employer is allowed to take an average over a six-month period. There are caps: paid E-FMLA leave may not exceed $200 per day and $10,000 in the aggregate.
The standard FMLA job restoration requirements apply to employers with 25 or more employees. Under certain circumstances, the job restoration requirements will not apply to employers with fewer than 25 employees.
As with the E-Paid Sick Leave Act, there are tax credits available to offset expenditures by employers to comply with the E-FMLA. Again, the mechanics of these credits are beyond the scope of this Bulletin and employers should seek advice from their accounting professional to understand and take full advantage of the tax credits.
Exemptions to E-Paid Sick Leave Act and E-FMLA
Employers of health care providers and emergency responders are exempt from E-Paid Sick Leave requirements. Such businesses, as well as businesses with under 50 employees may be entitled to an exemption if the leave requirement would jeopardize the business as an ongoing concern. However, this is contingent on whether the Secretary of Labor grants such exemptions, which is currently unknown. Act or the E-FMLA.
What Employers Should Do Now
Employers should act immediately to conform their policies and practices to the myriad requirements of the Families First Coronavirus Response Act. Employers with questions about this new law should contact their attorney at Foundation Law Group LLP.
