On April 2, 2020, The Families First Coronavirus Response Act (FFCRA) will take effect in response to the current global pandemic. If you own a small business with fewer than 500 employees, this legislation will affect you. To remain compliant, it is vital that you understand what the legislation does, how it impacts you and your employees, and what conditions will trigger the new guidelines.
What Does the New Legislation Do?
The FFCRA creates new obligations for employers with fewer than 500 employees. It contains two separately enacted laws:
- The Emergency Paid Sick Leave Act
- The Emergency Family and Medical Leave Expansion Act
These acts grant temporary paid family and sick leave to employees under certain conditions related to the COVID-19 outbreak. The provisions expire on December 31, 2020 unless otherwise extended.
The Emergency Paid Sick Leave Act (EPSLA) provides two weeks of paid leave for full-time and part-time employees that need time off for the specific COVID-19 related reasons outlined in the law. To qualify for paid leave, the employee must meet one of the following conditions:
- The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
- The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
- The employee is caring for an individual who is subject to an order described in paragraph 1 above or has been advised by a health care provider as described in paragraph 2 above;
- The employee is caring for a son or daughter of such employee if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
- 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.
Which employees are eligible?
All employees who meet conditions 1 - 3, whether full or part-time, are entitled to two weeks of paid sick leave under this act.
How much will employees be paid?
Full-time employees meeting conditions 1-3 above must be paid their regular rate of pay for 80 hours of work. Part-time employees or employees with a varied schedule must be paid their regular rate of pay based on the average number of hours the employee was scheduled per day over the previous six months. If the employee has not worked for six months prior to taking leave the employee should be paid “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.” Employees who meet conditions 4-6 above are entitled to two-thirds of their regular rate of pay.
Are there limits on how much an employer has to pay?
Yes. Sick leave pay is limited to $511 per day up to $5,110 total per employee for his or her own use (conditions 1 - 3) and to $200 per day up to $2,000 total to care for others (conditions 4 - 6).
What if an employee hasn’t been with my company very long?
EPSLA sick leave applies to all employees regardless of how long they have been employed.
Can I require employees to use their regular PTO first?
No. Employers cannot require an employee to use other paid leave before the employee uses the sick leave required by the EPLSA. They may, however, require reasonable notice after the first workday an employee receives paid sick time in order to continue receiving paid sick leave.
Will EPLSA leave carry over to next year?
No. The EPLSA leave will not carry over to the following year and the EPLSA does not require an employer to pay an employee for unused sick leave upon termination, resignation or retirement.
The Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (EFMLEA) expands current FMLA provisions to cover emergency leave related to COVID-19 as declared by a federal, state, or local authority.
To qualify for coverage, an employee must be unable to work (or telework) due to a need to care for a son or daughter of the employee who is under 18 years of age because the child’s school or place of care has been closed, or the childcare provider is unavailable due to a public health emergency.
EFMLEA Questions You May Be Asking
Which employees are eligible?
Employees are eligible for the emergency leave if they have been employed for 30 days or more prior to taking leave. This is a significant change from FMLA requirements and will affect many additional employers.
I have fewer than 50 employees. Does this affect me?
Yes. The EFMLA still applies to small employers that do not meet the 50 or more employees within a 75-mile radius requirement of the FMLA.
When does EFMLA leave take effect?
The first 10 days of the employee’s leave under the EFMLA is unpaid. However, the employee may elect to substitute any available paid leave (vacation, personal or sick leave) for such unpaid leave. Following that initial 10-day unpaid period, a qualifying employee is entitled to paid leave for the remaining 12-week period.
How much will employees receive?
Eligible employees will be paid at two-thirds of their regular rate of pay. Regular rate of pay for a part time employee or an employee with a fluctuating schedule should be determined as described above under the EPSLA.
Are there limits on how much an employer has to pay?
Yes. The amount employers must be is capped at $200 per day or $10,000 in aggregate.
What happens when the employee is ready to come back to work?
Employers with 25 or more employees will have the same obligation as under the FMLA to return the employee to the same or equivalent position at the conclusion of their leave time. Employers with fewer than 25 employees may be excluded from restoring the employee’s position if it no longer exists due to a change in economic or operating conditions of the employer that are caused by a public health emergency occurring during the employee’s leave period. See DOL website for exemption and eligibility requirements.
What Else Should You Know
Business with fewer than 50 employees may eventually be exempted.
Both the EPLSA and the EFMLEA include language allowing subsequent U.S. Department of Labor (DOL) regulations to exempt small businesses with fewer than 50 employees when the requirements would jeopardize the viability of the business as a going concern. Guidelines related to this exemption published by the DOL appear at this time to only include leave taken due to a school or childcare closure.
Employers must post a notice that advises employees of their rights under the FFCRA.
You can
download this notice
from the DOL website.
The DOL has issued guidelines for employers and employees with respect to both the EPLSA and the EFMLEA.
These guidelines can be found on the
DOL website
.
Employers can seek reimbursement for the amounts paid to employees under the FFCRA through tax credits.
If you have employment or tax related questions please contact an employment attorney for a more in depth analysis of your particular circumstances.
