The Families First Coronavirus Response Act (the “FFCRA”) was signed into law by President Trump on March 18, 2020, will become effective within 15 days of enactment, and will remain effective until December 31, 2020.
The FFCRA makes emergency supplemental appropriations and amendments in response to the COVID-19 pandemic. The FFCRA has eight (8) divisions, which range in scope from additional budgetary appropriations and nutrition waivers to tax credits for paid sick leave. This article will address the leave requirements found in Division C – Emergency Family and Medical Leave Expansion Act (“FMLA Expansion”) and Division E – Emergency Paid Sick Leave Act and other relevant employment provisions including Division D – Emergency Unemployment Insurance Stabilization and Access Act of 2020 and Division G – Tax Credits for Paid Sick, Paid Family and Medical Leave.
As with all new legislation, we know that you will have questions and we are here to assist you in implementing this emergency legislation.
THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
WHICH EMPLOYERS ARE COVERED?
The FMLA Expansion provisions applies to all employers with fewer than 500 employees. This provision does not require a minimum number of employees, only that the employer employ fewer than 500 employees.
While the FFCRA contains a provision that allows the Secretary of Labor to issue regulations to exempt small businesses with fewer than 50 employees when the FMLA Expansion would jeopardize the viability of the business as a going concern, the Secretary of Labor has not yet offered any guidance on this issue. Currently, there are no guidelines in place to determine when an employer can claim this exemption.
Employers with at least 50 or more employees within a 75 mile radius are still obligated to abide by all other requirements of the Family and Medical Leave Act, including providing unpaid leave to a qualifying employee who has a serious health condition or who must care for an immediate family member with a serious health condition.
WHICH EMPLOYEES ARE ELIGIBLE?
To receive the benefits under the FMLA Expansion, the employee does not need to have worked a minimum number of hours or been employed for twelve months. The employee need only to have been employed for 30 calendar days.
The FFCRA allows the Secretary of Labor authority to exclude certain health care providers and emergency providers from the definition of “eligible employee”. In addition, the FFCRA allows employers to elect to exclude a health care provider or an emergency responder from the FMLA Expansion. A health care provider is defined under the Family and Medical Leave Act as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing health care services.”
Independent Contractors are not eligible for benefits under either the Family and Medical Leave Act or the FMLA Expansion.
WHEN IS LEAVE REQUIRED?
Under the FMLA Expansion, eligible employees are entitled to take 12 weeks of job-protected leave if the employee is unable to work or telework due to a need for leave to care for a son or daughter who is under the age of 18 and whose school or place of care has been closed or whose child care provider is not available due to COVID-19.
A child care provider is defined as someone who receives compensation on a regular basis for providing child care services, and therefore, it is unlikely that a family member or family friend who is only temporarily caring for the child and/or who does not receive payment will qualify as a “child care provider”.
DOES THE LEAVE HAVE TO BE PAID?
The first 10 days of leave is unpaid, but employees may elect to substitute paid leave, such as paid time off or vacation pay or pay under the Paid Sick Leave Act (if they have not already used it), for this unpaid leave. After the initial 10 days, leave must be paid at 2/3 of the employee’s regular rate of pay for the number of hours that the employee would otherwise have been normally scheduled to work. Additional provisions may apply if the employee works a variable schedule such that an employer is unable to determine that number of hours an employee would have worked.
Paid leave under the FMLA Expansion is capped at $200.00 per day and $10,000.00 in the aggregate per employee.
DOES THE EMPLOYEE HAVE TO GIVE NOTICE?
Unlike the FMLA, there is no time period for notice, and the employee need only provide as much notice as is practicable. In addition, it is currently unclear what, if any, certification and recordkeeping requirements will apply.
DOES THE EMPLOYER HAVE TO RETURN THE EMPLOYEE TO A SAME OR EQUIVALENT POSITION AFTER THE LEAVE?
Employers with fewer than 25 employees may be relieved from the requirement to restore an employee to their same or an equivalent position if the position does not exist due to economic conditions or operating conditions affecting employment that are caused by the coronavirus emergency and the employer makes reasonable efforts to restore the employee to an equivalent position held by the employee when the leave commenced. An employer, however, must contact an employee within a one-year period beginning on the earlier of: (i) the date on which the qualifying need related to the public health emergency concludes; or (ii) twelve weeks after the date the employee’s leave commences, if an equivalent position becomes available.
CAN THE EMPLOYER BE SUED FOR VIOLATING THE FMLA EXPANSION?
If an employer has 50 or more employees, then the employer is liable just as they would be under the Family and Medical Leave Act. If an employer has fewer than 50 employees, then the employer will be exempt from private civil action, but may still be liable under action taken by the Secretary of Labor.
THE EMERGENCY PAID SICK LEAVE ACT
WHICH EMPLOYERS ARE COVERED?
The Emergency Paid Sick Leave Act provisions applies to all employers engaged in commerce or in any industry or activity affecting commerce with fewer than 500 employees, including government and public agencies.
Like the FMLA Expansion, the Secretary of Labor is allowed to issue regulations that would exempt small businesses with fewer than 50 employees when the Paid Sick Leave would jeopardize the viability of the business as a going concern. The Secretary of Labor, however, has not yet offered any guidance on this issue.
WHICH EMPLOYEES ARE ELIGIBLE?
Any and all employees, regardless of their duration of employment or number of hours worked, to the extent that the employee is unable to work (or telework) due to the need for leave because:
(1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
(4) The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(5) The employee 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) The employee 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.
Employers may elect to exclude employees who are health care providers or emergency responders from the Paid Sick Leave requirement. The Paid Sick Leave Act incorporates the FMLA’s definition of “health care provider”.
HOW MUCH PAID SICK LEAVE DO EMPLOYEES RECEIVE?
Full-time employees are immediately entitled to 80 hours of Paid Sick Leave, and part-time employees are immediately entitled to Paid Sick Leave in the number of hours equal to the average number of hours that the employee works over a 2-week period.
Paid Sick Leave ceases beginning with the employee’s next scheduled work shift immediately following the termination of the need for the Paid Sick Leave.
WHAT IS THE RATE FOR THE PAID SICK LEAVE?
Employees must be paid their regular rate of pay, except that they may be paid at 2/3 their regular rate for leave associated with care for an individual subject to self-isolation or quarantine or to care for a son or daughter whose school has closed, or whose child care provider is unavailable, due to the coronavirus.
The pay related to selfcare is capped at $511.00 per day and $5,110.00 in the aggregate per employee. The pay related to care for an individual or for a son or daughter is capped at $200.00 per day and $2,000.00 in the aggregate per employee.
IS THE PAID SICK LEAVE PAID OUT ON TERMINATION
The Paid Sick Leave Emergency Act is only effective until December 31, 2020, and as such, the Paid Sick Leave is not paid out upon termination of employment or carried over if not used by the employee.
DO EMPLOYERS WITH EXISTING PAID TIME OFF POLICIES HAVE TO PROVIDE EMERGENCY PAID SICK LEAVE?
Paid Sick Leave provided in accordance with the FFCRA must be provided in addition to any paid leave already provided by an employer and an employer may not change any existing paid leave plan to avoid paying Paid Sick Leave under the FFCRA. Additionally, an employer may not require an employee to use other paid leave provided by the employer before using the Paid Sick Leave provided by the FFCRA.
IS THERE AN EMPLOYER NOTICE REQUIREMENT?
Employers must post and keep posted in a conspicuous place where employee notices are typically placed, a model notice which will be provided by the Secretary of Labor by March 25, 2020.
CAN AN EMPLOYER MAKE AN EMPLOYEE FIND A REPLACEMENT FOR THEIR SHIFT?
Under the Emergency Paid Sick Leave Act, an employer cannot require an employee to find coverage for a missed shift as a condition of providing Paid Sick Leave.
IS RETALIATION PROHIBITED?
It is unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who takes Paid Sick Leave in accordance with the Emergency Paid Sick Leave Act or who has filed a complaint related to the Emergency Paid Sick Leave Act.
CAN AN EMPLOYER BE SUED FOR VIOLATING THE EMERGENCY PAID SICK LEAVE ACT?
An employer who fails to provide Paid Sick Leave, or who unlawfully terminates an employee, may be held liable for unpaid minimum wages, liquidated damages, prevailing plaintiff attorney’s fees and costs, and other legal and equitable relief including injunctive relief. The failure to pay Paid Sick Leave will be considered a failure to pay minimum wages under the Fair Labor Standards Act.
Division D of the FFCRA would provide approximately $1 billion to states for unemployment assistance. Half of this aid would be received within 60 days from the enactment of the FFCRA and the additional funds would be reserved for states that have seen at least a 10% increase in unemployment compensation claims over the same quarter in the prior calendar year. The states must meet certain requirements in order to receive the second portion of funds, such as requiring employers to provide notification of the availability of unemployment compensation at the time of separation from employment and waiving work search requirements and waiting periods to make it easier for individuals to obtain unemployment assistance.
In addition, in acknowledgment of the financial burden to employers, Division G of the FFCRA provides for a series of refundable tax credits, subject to certain caps, for the employers who are required to provide the benefits set forth in the FMLA Expansion and the Emergency Paid Sick Leave Act. The FFCRA includes a quarterly credit against the employer portion of Social Security taxes for amounts paid under these provisions.
Our Firm has assembled a multidisciplinary team to assist you if you need additional guidance on any of the employment or other provisions of the FFCRA. As with everything related to COVID-19, circumstances change rapidly. We are working to keep you informed with the most up-to-date information so that you can make the best decisions for your business.
Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is an associate in the Clearwater office whose practice focuses on Labor and Employment Law.