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The Families First Coronavirus Response Act
In response to the COVID-19 pandemic, the federal government has moved relatively quickly. The Families First Coronavirus Response Act (the “Act”) is the first and likely not the past piece of legislation to address this ever-growing and changing pandemic. Effective April 1, 2020, the Act expands the eligibility and pay requirements of the Family and Medical Leave Act (FMLA) and provides for emergency paid sick leave. These requirements will expire on December 31, 2020. The US DOL has issued guidance on the Act which you can find here:
https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
The Act also provides additional unemployment insurance funds to states who adhere to certain requirements such as mandating that employers notify employees of available unemployment compensation, waiving the waiting period and waiving work search requirements.
Overview of What The Leave Act Provides
Here is an overview of the leave that employees of covered employees are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
What employers are covered under the Act?
Private employers that employ fewer than 500 employees. The Act also applies to most public workers.
What employees are covered under the Act?
All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19, as discussed below. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19, as discussed below.
Is notice required before taking leave under the Act?
Where an employee can foresee taking leave, an employee should provide notice of leave to the employer. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures to continue receiving paid sick time.
What are the qualifying reasons for leave?
An employee qualifies for paid sick time if the employee is unable to work or unable to telework for one of these six reasons:
- The employee is 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 related to COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
What is the duration of Leave?
For employees taking leave under reasons 1-4 and 6: A full-time employee is eligible for 80 hours of leave (or two weeks) and a part-time employee is eligible for the number of hours of leave the employee works on average over a two-week period.
For employees taking leave under reason 5: A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave plus up to 10 weeks of paid expanded family and medical leave) at 40 hours a week and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
How much in paid leave can employees receive?
How much paid leave the employee receives depends on the reasons for needing to take leave. If an employee is taking leave for reasons 1, 2 or 3, the employee is entitled to paid sick leave at their regular rate, capped at $511 per day ($5,110 in the aggregate over a two week period).
Here are some examples to illustrate when an employee is unable to work for the above three reasons.
Example 1: Employee earns $60,000 per year, which equals $1,153.85 per week and $230.77 per day; employee is entitled to $230.77 of paid leave for two weeks.
Example 2: Employee earns $200,000 per year, which equals $3,846.15 per week and $769.23 per day; employee is entitled to only the maximum of $511 per day of paid leave for two weeks.
Example 3: Employee gets paid $15.00 per hour and works 40 hours per week, totaling $600 per week; employee is entitled to only the maximum of $511 per day of paid leave for two weeks.
If an employee is taking leave for reasons 4 or 6, the employee is entitled to paid sick leave at 2/3 of their regular rate, capped at $200 per day ($2,000 in the aggregate over a two week period).
Here are some examples to illustrate when an employee is unable to work for these reasons.
Example 1: Employee earns $60,000 per year, which equals $1,158.85 per week and $230.77 per day; employee is entitled to $153.85 (2/3s of $230.77) per day for two weeks.
Example 2: Employee earns $200,000 per year, which equals $3,846.15 per week and $769.23 per day; because 2/3s of $769.23 is greater than $200, employee is entitled to only the maximum of $200 per day of paid leave for two weeks.
If an employee is taking leave for reason 5, employees are entitled to pay at 2/3 their regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, with a maximum of $200 per day and $12,000 in the aggregate (over 12 weeks).
Unused emergency sick leave will not carry over into the next year and employers are not required to pay employees for unused emergency sick leave at separation. Employers may not require employees to use other available leave prior to using emergency sick time and are prohibited from retaliating against employees who utilize such leave.
Emergency Family and Medical Leave Expansion Act
With The Act, the FMLA has been temporarily amended and expanded for all employers with fewer than 500 employees for when an employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. This is reason 5, detailed above.
Employees are eligible for such leave if they have worked for a covered employer for at least 30 days. Importantly, this temporary expansion does not restart how much leave someone is entitled to under the FMLA. If an employee has already taken some of their FMLA leave, he or she makes the remaining portion of the leave; it does not reset to 12 weeks.
Putting this all together, the first 10 days of Emergency FMLA Leave are unpaid, although employees may substitute other available paid time off, including Emergency Paid Sick Leave as described above. After the first 10 days, the employee must be paid at a rate that is at least 2/3 of their regular rate of pay multiplied by the number of hours they would otherwise be normally scheduled to work, capped at $200 per day per employee ($10,000 in the aggregate).
Small employers with fewer than 50 employees may seek an exemption from the expanded FMLA requirements by application to the Secretary of Labor if the employer can show that compliance with the Act would jeopardize the business.
What about furloughed employees?
Employees are entitled to paid sick leave of Emergency FMLA only if they are actively employed. Furloughed employees are there not entitled to paid sick leave or Emergency FMLA.
What about intermittent leave?
Employees may take paid sick leave or Emergency FMLSA intermittently only (1) if the employee allows it and (2) if the employee is teleworking or their reason for taking leave is because they are caring for a child whose school is closed or child care provider is unavailable.
Tax Credits Are Available
Employers who provide Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave in accordance with the Act are eligible to receive refundable tax credits against their payroll taxes in an amount equal to 100% of qualified leave paid by the employer for each calendar year.
If you have questions or would like additional information, please contact Chris Lowe at Chris@lipskylowe.com or Doug Lipsky at doug@lipskylowe.com. You can also always visit our website for the latest updates: https://lipskylowe.com/category/covid-19/
Stay Safe. Stay Calm. Stay Inside. Wash Your Hands.