On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law. The FFCRA imposes paid and sick leave obligations on employers with less than 500 employees. This law is limited to effects directly related to the Coronavirus. The FFCRA became effective on April 2, 2020 and will expire on December 31, 2020.
Tax Credits. An employer can get a refundable tax credit against payroll taxes for each calendar quarter in an amount equal to 100% of the qualified sick leave wages that the employer pays under the FFCRA. Speak with your tax professional about this.
The FFCRA establishes paid medical leave (under the Emergency Family and Medical Leave Expansion Act) and paid sick leave (under the Emergency Paid Sick Leave Act).
Paid Medical Leave – Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) applies to any employer with few than 500 employees. The EFMLEA requires those employers to provide employees with up to 12 weeks of leave for a “qualifying need related to a public health emergency,” which includes COVID-19.
Employees qualify under the EFMLEA if:
- The employee has been employed by employer for at least 30 calendar days (unless the employer is a healthcare provider or the employee is an emergency responder);
- An employee is unable to work (or telecommute) because the employee needs to care for a child under the age of 18 whose school or place of care has closed, or,
- because that child’s care provider is unavailable because of an emergency declared by a federal, state or local authority related to COVID19.
Payment During Medical Leave under the EFMLEA.
Under the EFMLEA, the first 10 days of the employee’s leave may consist of unpaid leave, but an employee may choose to substitute any accrued paid leave (vacation, personal or medical or sick leave) for such unpaid leave. Following that 10-day period, an employer must provide paid leave to the employee for each additional day of leave.
Rate of Pay During Leave.
The rate of pay for paid leave under the EFMLEA is calculated based on:
- a rate of not less than two-thirds of the employee’s regular rate of pay;
- the number of hours the employee would otherwise normally be scheduled to work; and,
- is capped for each employee at $200 per day or $10,000 in the aggregate.
Small Employer Exemption.
As stated above, the EFMLEA governs small employers unless the Department of Labor decides to exempt such an employer on the grounds that the EFMLEA’s requirements would jeopardize the employer’s ability to continue operating.
Also, employers with fewer than 25 employees are exempt from the job-protected aspect of this leave (not from the entire leave) if the following conditions are met:
- An employee takes emergency leave as provided under the FFCRA.
- The employer eliminates the position of the employee taking the leave due to “economic conditions” or other changes that affect the employer’s operations resulting from the public health emergency.
- The employer makes “reasonable efforts” to restore the employee to a position equivalent to the position the employee held when leave commenced, with equivalent pay, benefits and other terms and conditions.
- If those “reasonable efforts” fail, the employer makes an effort to contact the employee if an equivalent position becomes available, within a contact period spelled out in the bill.
Paid Sick Leave – Emergency Paid Sick Leave Act
The Emergency Paid Leave Act (“EPLA”) requires private employers with fewer than 500 employees to provide emergency leave to employees who are unable to work for any of the following reasons related to COVID-19:
- the employee has a current diagnosis of COVID-19;
- A health care provider, employer or government official has instructed the employee to quarantine himself/herself (or the employee has self- quarantine);
- The employee is experiencing symptoms of COVIC19 and seeking a medical diagnosis;
- The employee is caring for another person who has COVIC 19 or who is under a quarantine-related to COVID-19;
- The employee is caring for a child whose school or place or care has closed, or whose childcare provider is unavailable, because COVID-19 precautions; or,
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
EPLA Rate of Pay.
The rate of pay that an employee may receive for sick leave under the EPLA depends on the reason why the leave is needed.
- If an employee seeks sick time because of the reasons in number 1 through 3 above, the employee’s sick time is capped at $511 per day and $5,110 in the aggregate.
- If the employee seeks sick time for the reasons in numbers 4 through 6, the employee’s paid sick time is capped at $200 per day and $2,000 in the aggregate.
EPLA Full Time or Part Time.
Full-time employees are entitled to 80 hours of paid sick time.
Part-time employees are entitled to paid sick time equal to the number of hours that the employee works, on average, over a two-week period. For example, an employee who works an average of 20 hours per week is entitled to 40 hours of sick time.
Timing of Sick Time.
Employees are immediately able to take EPLA sick time, regardless of their employment tenure with their current employer.
Employers Cannot Require Employees to Use Paid Leave.
Employers cannot require employees to use other forms of paid leave before using paid sick leave under the EPLA.
Employers do not have to pay employees for unused paid sick time upon termination or other separation from employment.
EPLA Small Business Exemption.
The Department of labor can exempt small businesses with fewer than fifty (50) employees from paying sick time to an employee: (i) who is caring for a son or daughter whose school or place of care has closed, or, (ii) whose childcare provider is unavailable because of COVID-19 precautions, when “imposition of the paid sick leave requirements would jeopardize the viability of the business as a going concern.”
Under the EPLA, an employer is prohibited from retaliating against any employee who takes leave.
The EPLA requires employers to post notices of the statute requirements in “conspicuous places” on the employer’s premises.
On March 28, 2020 the United States Department of Labor added to its Frequently Asked Questions.
On March 28, 2020, the U.S. Department of Labor (“DOL”) added to its previously provided Frequently Asked Questions.