What Employers Need to Know Now About the Families First Coronavirus Response Act

Hawkins Parnell & Young's labor and employment team led by National Chair Ronald G. Polly, Jr. continues to monitor the evolving COVID-19 situation in the United States. We are actively advising clients around the country on the rapidly emerging legislation and regulation impacting their workforce globally. Contact Ronald G. Polly, Jr. or Matthew A. Boyd for assistance to help you navigate the employment relationship and related issues arising from COVID-19.

WHAT EMPLOYERS NEED TO KNOW NOW TO ENSURE COMPLIANCE

MARCH 18, 2020: President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), H.R. 6201. Employers have fifteen days to comply with most provisions of the law, which will remain in effect until December 31, 2020. The entire law can be found here.

Of particular importance to employers are the FFCRA’s requirements for emergency paid sick leave and expanded family and medical leave (“FMLA”) coverage to employees.

MANDATORY EMERGENCY PAID SICK LEAVE (“EPSL”)

WHO MUST COMPLY: All private employers with fewer than 500 employees and government employers. However, employers of health care providers and emergency responders may elect to exclude such employees from EPSL.

WHEN MUST EPSL BE PAID: EPSL must be provided to an employee who:

1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. Is caring for an individual who is subject to an order as described in paragraph (1) above or has been advised as described in paragraph (2) above;
5. 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; or
6. 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.

AMOUNT OF EPSL THAT MUST BE PROVIDED: Full-time employees are entitled to 2 weeks (80 hours) and part-time employees are entitled to the typical number of hours that they work in a typical two-week period. All employees are eligible for EPSL immediately upon hire, and employers may not require employees to use other paid leave before using EPSL.

CALCULATING EPSL: EPSL is paid at the employee’s regular rate of pay if the employee is absent for his or her own coronavirus-related illness (capped at $511 per day); EPSL is paid at two-thirds the employee’s regular rate to care for a family member for such purposes or to care for a child whose school has closed, or child care provider is unavailable, due to the coronavirus (capped at $200 per day).

Employers are also required to post a Notice advising employees of their rights to receive EPSL (The notice should be available from the DOL within 7 days).

The requirements for EPSL will remain in effect through December 31, 2020.

THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

This Act expands the coverage currently existing under the FMLA. The expanded coverage applies to employers with fewer than 500 employees

Employees entitled to expanded leave protection: employees who have been employed for at least 30 days (as opposed to the usual 12 month requirement under the FMLA) and are unable to work or telework because they are needed to care for a child under the age of 18 due to school closures or childcare unavailability resulting from the COVID-19 pandemic.

PAID LEAVE: The first 10 days of leave may be unpaid, but thereafter, must be paid at a rate of two-thirds of the employee’s regular rate of pay, capped at $200 per day or $10,000 total per employee. Note employees may elect to substitute paid time off or EPSL – but unlike traditional FMLA, employers cannot require an employee to substitute PTO. Note: The 10 days of EPSL can be used during the initial 10-days of otherwise unpaid leave. Effectively, this means many employees will be paid some amount during their entire leave period.

REINSTATEMENT: Reinstatement remains the same as under the FMLA, but employers with 25 employees or less may not have to reinstate an employee if their position no longer exists upon their return due to economic conditions or other changes resulting from the public health emergency. In such cases, the employer must take reasonable efforts to restore the employee to an equivalent position with equal pay and benefits, but if this is not possible, must contact the employee if an equivalent position becomes available in the next year.

TAX CREDITS: Employers who are required to provide their employees with EPSL and/or paid FMLA may apply for and receive certain tax credits for those payments. The amount of the credit is 100% of the amount of qualified paid sick leave wages paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) (the employer portion of Social Security taxes).

In addition to the above, the FFCRA provides emergency funding to states for processing and paying unemployment insurance benefits, expands food security and other similar protections. Note that the new law does not require any leave, paid or unpaid, for employees who are off work only because of an office closure – they must meet the other requirements described above to qualify.