On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (FFCRA). This E-Alert is meant to provide a general overview of the FFCRA only. Please feel free to contact one of our attorneys if you have any questions related to this legislation or any aspect of a employer's responsibilities relating to the coronavirus.
The FFCRA paid leave laws apply only to employers with fewer than 500 employees. Additionally, the FFCRA is temporary. The FFCRA becomes effective on April 2, 2020 and will sunset on December 31, 2020. The most notable provisions are "The Emergency Paid Sick Leave Act" (EPSLA) and the "Emergency Family and Medical Leave Expansion Act" (EFMLEA). Employers who are required to provide the paid leave will be entitled to tax credits for monies paid to employees for these types of leave.
The EPSLA is a completely new law that will provide up to two weeks of paid leave for employees off work due to being directly affected by COVID-19. Employees are immediately eligible as long as they are employed at the time they request leave. To be eligible, employees need to be directly affected by COVID-19, this means:
Full-time employees may take up to 80 hours (2 weeks) of paid leave. Part-time employees are entitled to paid leave equal to an average of the hours they would work in a two-week period. If the leave is triggered by the employee's health, then the pay is at 100% of the employee's regular rate. If the leave is to care for a family member or home-bound child, then the pay is two-thirds (2/3) of the employee's regular rate. In no event shall compensation under sections 1-3 above be more than $511.00 per day or $5,110.00 in aggregate. Likewise, employees taking leave under sections 4-6, shall not be entitled to more than $200.00 per day or $2,000.00 in aggregate. Employers may not require employees to exhaust other types of leave before taking leave under the EPSLA.
The EFMLEA temporarily expands the current Family Medical Leave Act (FMLA) to provide paid leave for those employees with a qualifying COVID-19 related condition. Unlike the FMLA, which requires an employee tenure of at least 12 months, employees must only be employed for at least 30 days to be eligible for leave under the expanded EFMLEA. To be eligible for paid leave under the EFMLEA if, in addition to being employed for 30 days, the employee must be:
Notably, employers cannot require certification or other documentation for leave during a public health emergency. The EFMLEA requires employers to provide up to 12 weeks of leave for the qualifying reason, described above, related to COVID-19. The first ten days of leave (two work weeks) may be unpaid under this leave, but as noted above, EPSLA creates a new obligation to provide two weeks of paid leave for public health emergencies that your employees could use to fill that gap.
An employee may also elect to substitute other types of leave to cover this first 10 days (two work weeks) of leave under EFMLEA, but cannot be required to do so. After the first 10 days (two work weeks), the remaining family and medical leave under EFMLEA must be paid at two-thirds the employee's regular rate based on their normal work schedule (this is the same for both full and part-time employees). In no event shall employees be entitled to paid leave of more than $200.00 per day or $10,000.00 in aggregate under the EFMLEA.
Pursuant to the EFMLEA, the FMLA's usual requirement that an employee be restored to the same or equivalent position after leave does not apply to employers with fewer than 25 employees if the employee's position no longer exists as a result of economic conditions or other changes in the employer's operations caused by the public health crisis during the period of leave. Employers with fewer than 25 employees must still make reasonable efforts to restore employees to the same or equivalent positions, and if those reasonable efforts fail, must make efforts to contact and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of:
If an employer prohibits an employee from reporting to work for reasons related to COVID-19, the employee is unable to work remotely, and the employee does not fall within one of the above outlined reasons for leave under EPSLA or FEMLEA, such an employee would not be entitled to or eligible for benefits under the FFCRA. The Department of Labor will be providing further guidance on certain provisions of the FFCRA in the coming days, including calculating varying schedule compensation for part-time employees and a mandatory poster employers will have to post that explains these benefits to employees (similar to other DOL required posters).
The FFCRA also provides for exemptions for employers with 50 or fewer employees under certain circumstances from complying with these leave requirements. The exemption requires a showing that complying with these laws "would jeopardize the viability of the business as a going concern."