Employment Law Update

The Families First Coronavirus Response Act (FFCRA) passed the U.S. Congress and was signed by President Trump on March 18, 2020. The new law goes into effect April 2, 2020. It provides expanded leave rights and paid leave under the Family and Medical Leave Act (FMLA) as well as a new paid emergency sick leave entitlement. Both new leave entitlements are currently set to expire December 31, 2020.

• Guidance from the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission

Emergency Family and Medical Leave Expansion Act

What is the New Leave Entitlement?

The new law amends the existing FMLA law to allow up to 12 weeks of protected leave during a public health emergency. A “public health emergency” means an emergency with respect to the novel coronavirus, also known as COVID-19, as declared by a federal, state or local authority. President Trump and Gov. Hogan have declared states of emergency.

Which Employers Are Covered?

Employers of 500 or fewer employees must provide the emergency FMLA leave to eligible employees.

Which Employees Are Eligible?

Eligible employees only need to have been on their employer’s payroll for 30 calendar days or more to take advantage of the new benefit. The traditional FMLA requirements that an employee be employed for at least one year, have worked for 1,250 hours during the past 12 months and have worked in a location where 50 employees are within a 75-mile radius do not apply to the emergency FMLA leave created by the amendment.

What Is a Qualifying Need for Leave Under the Amended Law?

Emergency FMLA leave may be taken by employees who are unable to work or telework due to a need for leave to care for their son or daughter younger than 18 if, due to a public health emergency, the child’s elementary or secondary school or place of care is closed or the child care provider is unavailable. A “child care provider” means a person who receives compensation for providing child care. (The final law omits leave based on quarantines affecting employees and their family members, which was included in earlier versions of the act).

Are There any Exemptions from Coverage Under the Amended FMLA?

The U.S. Secretary of Labor has the authority to issue regulations excluding certain health care providers and emergency responders from coverage under the amendment.

The amendment additionally contains a special rule allowing an employer of an employee who is a health care provider or emergency responder to elect to exclude such an employee from being able to use the emergency FMLA leave. Although there is no definition of “emergency responder”, the definition of “health care provider” found in the FMLA applies and includes: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, Christian Science practitioners and any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefit.

The U.S. Secretary of Labor also has the authority to issue regulations exempting small businesses with fewer than 50 employees from having to provide the emergency FMLA leave if it would jeopardize the viability of the business.

How Much of the New Leave is Paid and How is the Pay Calculated?

The first 10 days of the emergency FMLA leave may be unpaid  although an absence to care for a son or daughter if the child’s school or child care center has closed is also covered under the new paid emergency sick leave law. (See below). An employee may also elect to substitute any accrued vacation, personal, medical or sick leave for the unpaid leave.

Any remaining emergency FMLA leave used after the first 10 days must be paid and based on:

• An amount that is no less than two-thirds of the employee’s regular rate of pay (as determined under the Fair Labor Standards Act [FLSA]), and
• The number of hours the employee would otherwise be normally scheduled to work.

If the employee has a schedule that varies from week to week, so that the employer cannot determine with certainty the number of hours the employee would have worked, the employer must use the average number of hours the employee was scheduled to work during the six-month period preceding the leave. If the employee had not worked during the six-month period, the employer is to use the average number of hours the employee reasonably expected they would be normally scheduled to work at the time of hiring.

Emergency FMLA leave pay is capped at $200 per day and $10,000 in the aggregate for each employee.

What Notice of the Need for Leave Are Employees Required to Provide?

If the need for leave is foreseeable, the employee is required to provide the employer with as much notice as is practicable.

What Are an Employee’s Job Restoration Rights?

An employee of an employer with 25 or more employees is entitled to the same job restoration rights as under the traditional FMLA.

An employer with fewer than 25 employees need not reinstate an employee if:

• The employee takes emergency FMLA leave, and
• The employee’s position does not exist any longer due to economic conditions or other operating conditions of the employer that affect employment and are caused by the COVID-19 emergency.

If the employee’s prior job does not exist, the employer must then make reasonable efforts to restore the employee to an equivalent position. If such efforts fail, the employer must make efforts during a period of one year to contact the employee if an equivalent position becomes available. The contact period begins on the earlier end of the employee’s leave or the end of the public health emergency.

Are There Penalties for Violating the Emergency Leave Requirement?

Employers face the same penalties as under the traditional FMLA, which includes lost wages, liquidated damages in an equal amount to the lost wages, attorneys’ fees and costs. An employee may also be entitled to equitable relief, including reinstatement.

Emergency Paid Sick Leave Act

What Is the New Leave Entitlement?

The Emergency Paid Sick Leave Act requires employers to provide full-time employees with two weeks (80 hours) of paid sick leave at their regular rate. Part-time employees are entitled to paid leave equal to the number of hours they work on average during a two-week period. Emergency paid sick leave does not carry over from year to year, and employers are not required to pay out unused emergency paid sick leave upon termination.

Emergency paid sick leave is available for immediate use and terminates on the next scheduled work shift after the employee’s need for paid sick leave ends.

Employers may not require employees to search for or find a replacement to cover the hours during which the employee is using emergency paid sick leave.

Which Employers Are Covered?

Private employers of 500 or fewer employees must provide the emergency paid sick leave. Most government employers are also covered.

Which Employees Are Eligible?

The act applies to all employees, regardless of how long an employee has been employed by an employer.

What Is a Qualifying Need for Leave Under the Amended Law?

Paid sick leave must be provided if an employee is unable to work (or telework) because the employee is:

1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. Self-quarantining because the employee has been advised to do so by a health care provider due to concerns related to COVID-19;
3. Experiencing symptoms of the coronavirus and obtaining a medical diagnosis;
4. Caring for an individual who is subject to quarantine or advised by a health care provider to self-quarantine because of COVID-19 or is experiencing symptoms and needs to obtain a medical diagnosis;
5. Caring for a child if the child’s school or child care center has closed; or
6. Experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

How Is the Paid Sick Leave Calculated?

Emergency paid sick leave for the employee’s own needs (Items 1 to 3 above) must be paid at the employee’s regular rate of pay (at least the applicable federal, state or local minimum wage). Pay for such leave is subject to a cap of $511 per day and $5,100 in the aggregate.

Emergency paid sick leave paid because the employee is providing care for a reason listed in Items 4 to 6 above must be paid at two-thirds of the employee’s regular rate of pay. Pay for such leave is capped at $200 per day and $2,000 in the aggregate.

As with the emergency FMLA leave, special rules apply for employees whose scheduled hours vary from week to week.

The U.S. Secretary of Labor is required to issue guidelines by April 2, 2020, to assist employers in calculating the amount of required paid sick time.

How Is the Paid Emergency Sick Leave Coordinated With Other Employer-Provided Leave?

Employees may use the new emergency paid sick leave first before other types of leave. Employers are prohibited from requiring employees to use other paid leave provided by the employer before the employee uses the paid sick leave under the new law.

The act expressly provides that emergency paid sick leave is in addition to and does not diminish the rights an employee may have to leave under any other federal, state or local law, collective bargaining agreement or existing employer policy.

What Notice of the Need for Leave Are Employees Required to Provide?

After the first workday (or portion thereof) an employee receives paid emergency sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving the paid leave.

Is There a Posted Notice Requirement for Employers?

All covered employers are required to post a notice describing the requirements of the act. The U.S. Secretary of Labor is required to issue a model notice by March 25, 2020.

Are There any Exemptions from Coverage Under the Emergency Sick Leave Act?

The U.S. Secretary of Labor has the authority to issue regulations excluding certain health care providers and emergency responders from coverage under the act, and to exempt small businesses with fewer than 50 employees from having to provide the emergency sick leave if it would jeopardize the viability of the business.

Are There Penalties for Violating the Emergency Sick Leave Act?

Employers are prohibited from discharging, disciplining or discriminating against any employee who takes leave in accordance with the act, has filed a complaint under the act, or testified in a proceeding related to such a complaint.

An employer who is found to have violated the act will be considered to have failed to pay minimum wages under the FLSA and be subject to the penalties of that law, which include the payment of liquidated damages, attorneys’ fees and costs. An employer who willfully violates the prohibition against discharge, discipline and discrimination will be considered to have violated the anti-retaliation provisions of the FLSA and be subject to FLSA penalties. In addition to potential civil damages, employers that violate the FLSA also face a possible fine of not more than $10,000, imprisonment for not more than six months or both and injunctive relief.

Tax Credits for Paid FMLA and Sick Leave

The FMLA payroll tax credit is equal to 100% of the leave paid, up to $200 per day. The paid sick leave tax credit is equal to 100% of the leave paid, up to $511 per day for the employee’s own condition, and up to $200 per day for leave taken to care for a family member or because of a school or child care closure. Employers should consult with their tax counsel or accountant for information on seeking the tax credits.

This article is a summary of the new law. Like most leave laws, the FFCRA is complex and has many requirements. If you have any questions about the proposed leave law, please contact Charles R. Bacharach and James D. Handley.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

James D. Handley
410-576-4201 • jhandley@gfrlaw.com

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