FAQs concerning the newly enacted Families First Coronavirus Response Act (“FFCRA”):
GENERAL QUESTIONS REGARDING THE FFCRA:
When does the new law go into effect?
April 2, 2020. It will remain in effect through December 31, 2020.
Who does the law apply to?
Employers with less than 500 employees.
However, employers with less than 50 employees may qualify for an exemption if the leave requirements would jeopardize the viability of the business. The DOL will address how employers can meet and apply for this exemption in its forthcoming regulations. For now, the DOL has advised employers to document why its viability will be jeopardized if it is required to give leave as provided for in the FFCRA. Additionally, the DOL has indicated that a small business may claim this exemption if an authorized officer of the business determines that:
1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.What does the new law do?
It provides two (2) weeks of paid sick leave for COVID-19 illnesses and quarantine.
It expands the Family and Medical Leave Act (“FMLA”) to cover more employers and employees and provides family leave to care for a child at home due to COVID-19 closures.
Are employers required to notify employees of their rights?
Yes. Employers are required to post a notice in a conspicuous location at the employer’s premises or provide the notice by email, direct mail or by posting it on an employee internal or external website. DOL issued model notices for this purpose, a copy of which may be found at:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf and https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf.
How do employers pay for the leave required by the new law?
Employers will be entitled to quarterly payroll tax credits for 100% of paid leave provided. The IRS recommends that employers retain funds they would otherwise pay to the IRS in payroll taxes and use the funds to pay the leave initially. However, should such amounts be insufficient to cover the paid leave costs, the employer may request an expedited advance from the IRS by submitting a claim form that will be released this week.
Tax credits for sick leave provided will also apply to the amounts paid to maintain health insurance coverage.
The tax credits received by the employer under the FFCRA must be included in the employer’s gross income.
Employers who take tax credits available for leave under the FFCRA cannot also receive tax credits for paid FMLA leave as provided for in IRS Code Section 45S.If the employer closes a worksite or furloughs employees, are the employees still eligible for the sick or family leave?
No. If the employee’s worksite is shut down due to a lack of business or because it was required to close pursuant to a Federal, State or local directive, employees effected do not get leave under the FFCRA.
May an employee be terminated for using leave under the new law?
No. Employers may not terminate, discipline, or otherwise discriminate against any employee who takes leave under the law or who files a complaint concerning the FFCRA.
How will the law be enforced?
The sick leave provisions will be subject the Fair Labor Standards Act enforcement provisions.
The family leave provisions will be subject to the FMLA’s enforcement provisions.
There will be a “temporary period non-enforcement” for 30 days after the Act goes into effect as long as the employer “has acted reasonably and in good faith” to comply with the law. “Good faith” compliance exists when “violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written communication from the employer to comply with the Act in the future.”
QUESTIONS CONCERNING THE NEW SICK LEAVE PROVISIONS:
Who is eligible for sick leave?
All employees, including part-time and temporary employees, regardless of how long they have been employed.
When is an employee entitled to take sick leave?
Sick leave must be provided immediately if the employee is unable to work (or telework) because:
1) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
2) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
3) The employee is subject to a Federal, State or local COVID-19 quarantine or isolation.
4) The employee is caring for an individual who is subject to a Federal, State or local COVID-19 quarantine or isolation order.
5) The employee is caring for a son or daughter because of the closure of a school or childcare provider due to COVID-19 precautions.
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 Treasury and the Secretary of Labor.
How much paid sick leave is provided?
Full-time employees are entitled to up to 80 hours of paid sick leave.
Part-time employees are entitled to the number of hours of leave that the employee works on average over a two (2) week period.
Can an employee use the employer’s paid sick leave in addition to the two weeks provided by the law?
Yes. An employee may choose to use accrued paid sick time provided by the employer for the first two weeks of EFMLA leave. After the first two weeks of leave, the employee may elect to or the employer may require the employee to take accrued leave available under the employer’s policies, such as vacation or personal leave or paid time off concurrently with the expanded family and medical leave under the EFMLA.
How much sick pay is provided?
Employees are entitled to earn up to $511 per day, or a maximum of $5,110 for their first ten (10) days of sick leave if the leave is needed because the employee is subject to a quarantine or isolation order, the employee has been advised by a health care provider to self-quarantine, or the employee is experiencing symptoms of COVID-19. (See above for the leave requirement details).
Employees are entitled to pay of 2/3 their regular rate of pay, which must be at or above applicable Federal or state minimum wage, for the hours the employee would normally be scheduled to work up to a maximum $200 per day or a total of $2,000 if the sick leave is needed because the employee is caring for someone subject to a quarantine order or is caring for a child at home because of school or day care closures.
QUESTIONS CONCERNING THE NEW FMLA LEAVE PROVISIONS:
Which employees are eligible for the COVID-19 leave?
Employees who have worked for an employer which has less than 500 employees for 30 days.
When is an employee permitted to take COVID-19 leave?
When the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age because of a school or child care closure resulting from a COVID-19 emergency declaration by a Federal, State or local authority.
How much time may the employee take?
Up to 12 weeks.
Is COVID-19 leave paid?
The first two weeks is unpaid although the employee may elect to use accrued vacation leave, personal leave, or medical or sick leave, if available.
The remainder of the leave (up to 10 weeks) is paid.
How is the paid leave calculated?
The employee is paid 2/3 of the employee’s regular pay based on the hours the employee would normally work up to $200 per day or $10,000 total.
If the employee normally works different hours each week, calculate the pay using the average number of hours the employee was scheduled per day in the last six (6) months or if the employee did not work for the employer for the prior six months, calculate the pay using the number of hours the employee could have reasonably expected to work each day at the time he or she was hired.
Is the employee’s job protected?
Yes, the employee should be returned to his or her position at the end of the leave unless the employer has less than 25 employees and:
1) The employee’s position no longer exists due to economic conditions or other changes to the employer’s operations due to the public health emergency.
2) The employer makes reasonable efforts to restore the employee to the same or an equivalent position.
3) The employer contacts the employee if an equivalent position becomes available within the one (1) year of the end of the employee’s leave or within one (1) year of schools or childcare reopening, whichever is earlier.