CLIENT ALERT

“Families First Coronavirus Response Act”

On March 18, 2020, President Trump signed the “Families First Coronavirus Response Act” into law.  Two major provisions of the FFCRA—each of which are Acts themselves—have a direct and immediate impact on leave issues and the corresponding payment obligations that employers are currently facing.  While the Secretary of Labor has been asked to issue additional guidance via the regulatory process (which should hopefully provide additional clarification), and while the law does not take effect for 15 days (April 2, 2020), employers should immediately assess and revise their current leave policies in order to satisfy the new obligations created by the FFCRA.  What follows is a summary of the law’s key highlights that should help start this process.  Employers are encouraged to consult with counsel when implementing these new leave benefits.

Emergency Family and Medical Leave Expansion Act

What it does: The “Emergency Family and Medical Leave Expansion Act” amends the Family and Medical Leave Act (“FMLA”) to include an additional category of FMLA-qualifying leave where an employee “is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  (NOTE: If an employee is able to “telework,” he or she would not be an “eligible employee” for purposes of this FMLA leave.)  The term “public health emergency” is defined as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”

Unpaid (at first), then paid, FMLA leave: The first 10 days of this new FMLA-qualifying leave event are unpaid, but the employee “may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.”  (NOTE: Unlike other FMLA leave, an employer cannot require an employee to use paid leave during this 10-day period.)  After the 10-day period has expired, the employer is required to pay the employee “not less than two-thirds of any employee’s regular rate of pay” for the duration of the FMLA-qualifying leave.  The total amount paid to each employee is capped: “In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.”  (NOTE: The law is silent with respect to whether an employee may supplement this paid leave with any available, but unused, leave allotment, or whether the employer may actually use any paid leave to help cover these required payments.)

Employers who are exempted… and who are not (at least right now): Employers with 500 or more employees are exempted from this new law.  (NOTE: Employers with fewer than 50 employees, who are not subject to the FMLA, are NOT exempted from this new law.  As a result, a small employer with just 5 employees is required to provide paid FMLA leave.  However, the Secretary of Labor might issue regulations “to exempt small businesses with fewer than 50 employees from the requirements of [the new law] when the imposition of such requirements would jeopardize the viability of the business as a going concern.”)

Ineligible employees: To be eligible for this FMLA leave, an employee must have “been employed for at least 30 calendar days by the employer.”  (NOTE: The 12-month/1250-hour requirement applicable for FMLA eligibility does not apply for this leave.)  Furthermore, as noted above, to the extent an employee can “telework,” he or she will be ineligible for this FMLA leave.  Further, “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from” this leave benefit, and the Secretary of Labor is authorized to issue regulations “to exclude certain health care providers and emergency responders from the definition of eligible employee.”

Sunset: This amendment to the FMLA will expire by its own terms on December 31, 2020.

Emergency Paid Sick Leave Act

What it does: The “Emergency Paid Sick Leave Act” requires employers to provide its employees with a certain amount of paid sick time above and beyond any paid leave time that they may already be providing.  Specifically, this new allotment of paid sick time must be provided to the extent an employee is unable to work (or telework) due to a need for leave because:

• The employee is subject to (or is caring for an individual subject to) a Federal, State, or local quarantine or isolation order related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine (or is caring for an individual who has been so advised) due to concerns related to COVID-19.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a child school or daycare has been closed, or the childcare provider is unavailable, due to COVID-19 precautions.

Two weeks’ pay: Employees are entitled to an amount of paid sick leave that would cover two weeks off from work.  Thus, a full-time employee is entitled to 80 hours of paid sick time.  A part-time employee, meanwhile, would be entitled to an amount of paid sick time equal to the number of hours he or she works, on average, during a normal two-week period.

Starts immediately: Paid sick time “shall be available for immediate use by the employee …, regardless of how long the employee has been employed by an employer.”

Over and above any leave that is already provided: According to the law, “[a]n employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.”  (NOTE: There was a provision in a previous version of the FFCRA that prohibited employers from modifying or revising their existing paid leave policies.  That provision was removed from the final version of the law.)

Payments are capped, but currently in flux: If the employee is using paid sick time for his or her own health-related reasons having to do with COVID-19, the amount of such paid sick time shall not exceed “$511 per day and $5,110 in the aggregate.”  If an employee is using paid sick time to care for another, the amount of such paid sick time shall not exceed “$200 per day and $2,000 in the aggregate.”  STAY TUNED… the Secretary of Labor has 15 days to “issue guidelines to assist employers in calculating the amount of paid sick time” due and owing to an employee who makes use of this new benefit.

Employers who are exempted… and who are not (at least right now): Employers with 500 or more employees are exempted from this new law.  The Secretary of Labor may issue regulations “to exempt small businesses with fewer than 50 employees from the requirements of [the new law] when the imposition of such requirements would jeopardize the viability of the business as a going concern.”)

Ineligible employees: If employees can “telework,” they will be ineligible for paid sick leave.  Furthermore, “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from” this leave benefit, and the Secretary of Labor is authorized to issue regulations “to exclude certain health care providers and emergency responders from the definition of eligible employee.”

Interplay with expanded FMLA leave: It is not clear right now whether, or to what extent, this paid sick leave can be used in conjunction with the newly created FMLA leave entitlement.  However, the Secretary of Labor is authorized to issue regulations to ensure consistency between these two provisions of the FFCRA.

Sunset: The “Emergency Paid Sick Leave Act” will expire by its own terms on December 31, 2020.