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.
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.
Employers of 500 or fewer employees must provide the emergency FMLA leave to eligible employees.
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.
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).
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.
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:
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.
If the need for leave is foreseeable, the employee is required to provide the employer with as much notice as is practicable.
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:
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.
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.
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.
Private employers of 500 or fewer employees must provide the emergency paid sick leave. Most government employers are also covered.
The act applies to all employees, regardless of how long an employee has been employed by an employer.
Paid sick leave must be provided if an employee is unable to work (or telework) because the employee is:
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.
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.
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.
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.
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.
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.
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 • firstname.lastname@example.org
James D. Handley
410-576-4201 • email@example.com
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