COVID-19: Federal Employment Leave Action–the FFCRA
Federal Government Passes Sweeping Law Providing Paid Sick Leave in Response to COVID-19 PANDEMIC
By: Glenn Duhl, Hugh Cuthbertson, Kyle McClain and Aaron Cruz
Originally published March 19, 2020
Updated March 24, 2020 to reflect certain clarifications provided by U.S. Department of Labor guidance.
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (H.R. 6201, 116th Congress (2019-2020). This law provides paid emergency leave for employees unable to work (or telework) and enhanced unemployment insurance. Paid emergency leave is addressed in two separate acts under the law: the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Both acts become effective not later than 15 days after the date of enactment—April 2, 2020. [U.S. Department of Labor guidance published on March 24, 2020 announced that the acts will become effective April 1, 2020.]
The requirements for paid emergency leave apply to private and public sector employers with less than 500 employees. Healthcare providers and emergency responders may elect to exclude their employees from receiving paid emergency leave. Employers with fewer than 50 employees can also apply for an exemption from providing paid emergency leave if it would jeopardize the viability of their business. Covered employers are eligible to receive a tax credit for providing paid emergency leave, equal to 100 percent of the wages paid for such leave.
Emergency Paid Sick Leave Act (“EPSLA”)
This act provides paid sick leave if an employee is unable to work (or telework) for the following reasons:
1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to paid sick leave equal to the average number of hours they work over a two-week period. Paid sick leave is paid at the employee’s full regular rate of pay capped at $511.00 per day and $5,110 in the aggregate for employees ordered or advised to quarantine and for employees caring for themselves (reasons 1, 2, and 3 above), and two-thirds of the employee’s regular rate of pay capped at $200.00 per day and $2,000 in the aggregate for all other reasons (reasons 4, 5, and 6 above). Paid sick leave is available for immediate use by employees regardless of the amount of time the employees have been employed by their employer. Such leave will not carry-over from year-to year. These benefits expire at the end of 2020.
Importantly, Employers are prohibited from requiring employees to use other paid leave provided by the employer before the employee uses the paid sick leave provided under the act. Employers also are required to post notice of the paid sick leave requirements in the workplace. This act does not preempt state paid sick leave laws. The act also does not affect an employee’s existing rights under a collective bargaining agreement.
Emergency Family and Medical Leave Expansion Act (“EFMLEA”)
This act amends the federal Family and Medical Leave Act (“FMLA”) to provide paid FMLA leave to employees who have been employed for at least 30 calendar days and are unable to work (or telework) because they are caring for a minor child whose school is closed or if their childcare provider is unavailable due to the COVID-19 outbreak. The act does not extend the traditional 12-week leave entitlement under the FMLA, but provides an additional COVID-19 related reason for which a broader group of employees may qualify for such leave.
Under the act, employer may provide the first 10 days of FMLA leave as unpaid leave, with the exception that an employee must be permitted to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. For the remaining 10 weeks, employers are required to pay eligible full-time employees two-thirds of their regular rate of pay. Part-time eligible employees, or those with irregular schedules, will be paid two-thirds of their regular rate of pay for the average number of hours worked over the prior 6 months of employment. Paid FMLA leave is capped at $200.00 per day. Employees are required to provide notice to employers of the need for leave “where practicable.” These benefits expire at the end of 2020.
This act does not affect an employee’s rights under an existing collective bargaining agreement. Given that, this act (the EFMLEA) allows employees to elect to substitute any accrued vacation, personal, medical or sick leave for unpaid leave, employees may elect to substitute any paid leave available to them under the EPSLA during the unpaid period of FMLA leave under the EFMLEA (assuming they qualify under both acts). Existing FMLA law permits an employer to run unpaid FMLA leave concurrently with an employee’s paid leave (if qualifying for FMLA leave) and, similarly, to require an employee to use any accrued paid leave while out on approved [unpaid] FMLA leave. Therefore, it is consistent with current law that an employer may require an employee to use any paid leave available to them under the EPSLA during the 10-day period of unpaid leave provided under the EFMLEA.
Enhanced Unemployment Insurance
The Families First Coronavirus Response Act also provides for increased resources for states to deliver timely unemployment insurance benefits to affected workers. This includes additional funding to states for the administration of unemployment compensation laws and assistance in establishing, implementing, and improving employers’ awareness of short-term compensation programs. The law also incentivizes states to temporarily modify their unemployment compensation laws and provide flexibility with respect to work search, waiting week, good cause, or employer experience rating in response to COVID-19.
Conclusion
As the COVID-19 pandemic continues to evolve, we will continue to provide updates on employment law developments to assist employers in navigating this ongoing public health crisis.
The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to an attorney.