This is Part One of a series of three blogs devoted to helping businesses understand federal, state and local rules and legislations related to COVID-19.
The Families First Coronavirus Response Act (“FFCRA”) requires certain employers to provide paid leave and expanded family and medical leave to certain employees affected by COVID-19. Generally, employers with fewer than 500 employees will be covered by these requirements. The Act goes into effect on April 1, 2020 and the provisions related to paid leave and expanded family and medical leave expire on December 31, 2020.
Emergency Paid Sick Leave
Under the FFCRA, all employees of a covered employer are eligible for paid sick leave, whether full time or part time and regardless of the length of time the employee has been employed by the employer.
An employee is entitled to paid sick leave at his/her regular rate of pay if the employee is unable to work or telework because the employee is:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19
- Advised by a health care provider to self-quarantine due to COVID-19 symptoms
- Experiencing COVID-19 symptoms and seeking medical diagnosis
An employee is entitled to paid sick leave at 2/3 of his/her regular rate of pay if the employee is:
- Caring for an individual that is subject to a federal, state, or local quarantine or isolation order or is experiencing COVID-19 symptoms and is seeking medical diagnosis
- Caring for his/her child if the child’s school has been closed or the childcare provider for the child (daycare, nanny, etc.) is not available
- Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services
Full-time employees are entitled to 80 hours of paid sick leave. For part-time employees, an employer must look to the average number of hours the part-time employee works over a two-week period. There are limits on the amount a covered employer must pay to each employee. If an employee is entitled to full pay, then payment is limited to $511/day and $5,110/total. If an employee is entitled to partial (2/3) pay, then payment is limited to $200/day, $2,000/total.
Emergency paid sick leave under the FFCRA can be used in addition to an employee’s other paid sick leave offered by the employer. Further, an employee can use emergency paid sick leave prior to using sick leave provided by an employer.
Expanded Family and Medical Leave
The FFCRA’s expansion of the Family Medical Leave Act (“FMLA”) broadens the definition of covered employers (500 or fewer employees) and the definition of eligible employees (employed for at least 30 days prior to taking leave). Unlike the emergency paid sick leave, there is only one qualifying reason for an employee to take emergency family and medical leave and that is if an employee is unable to work or telework due to a need for leave to care for the employee’s child if the child’s school or daycare is closed, or the child’s childcare provider (nanny, etc.) is unavailable due to a public health emergency (COVID-19).
As a reminder, the FMLA requires that a covered employer must provide an eligible employee with twelve weeks of job-protected leave. Under FFCRA’s expansion of FMLA, an employer is not required to pay an employee for the first 10 days of leave. During the first 10 days (two weeks) an employee can use other accrued paid personal and sick leave provided by the employer.
After the first 10 days an employer is required to pay the employee 2/3 of the employee’s regular rate of pay for the remaining 10 weeks of leave. For part-time employees, an employee must look to the average number of hours a part-time employee worked per day over the 6-month period immediately preceding the emergency leave. If the employee has not been employed by the employer for six months, the employer must look to the employee’s reasonable expectation at hiring of the average numbers of hours the employee would work each day. Payments to each employee are limited to $200/day, $10,000 total.
The Secretary of Labor is given the power to exclude certain health care providers and emergency responders from the expansion’s definition of eligible employee. An employer of an employee who is a health care provider or an emergency responder may also elect to exclude the employee from the expansion of FMLA. Additionally, the Secretary of Labor may issue a regulation that exempts employers with 50 or fewer employees if compliance with the FMLA expansion would threaten the viability of the employer’s business.
Employers covered by the paid sick leave and expanded family and medical leave portions of the FFCRA are required to post a notice to employees regarding the employees’ rights under the FFCRA. A model notice was recently issued by the U.S. Department of Labor and can be accessed here.
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