FAMILIES FIRST CORONAVIRUS RESPONSE ACT
The Families First Coronavirus Response Act (“FFCRA”) was signed into law by President Trump on March 18, 2020 and takes effect on April 2, 2020 for the remainder of 2020. The FFCRA provides for emergency paid leave under the Family Medical Leave Act as well as emergency paid sick leave.
1. EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT.
Included as part of the FFCRA is the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which amended the Family and Medical Leave Act. The EFMLEA provides additional leave coverage for employees and applies to all employers (except health care providers and emergency responders) with less than 500 employees. It is important to note that the 50-employee threshold under the FMLA does not apply to this expanded coverage.
To be eligible, an employee need only have been employed by the employer for thirty calendar days. Under the EFMLEA, the employer must provide up to twelve weeks of protected leave for any eligible employee who is unable to work or telework due to a need to care for a minor child whose school or place of childcare is unavailable due to a public health emergency.
Under the EFMLEA, the first ten days of the leave may be unpaid. An employee may elect to use any vacation or paid time off during the first two weeks of leave.
After the initial ten days, the employer must pay the employee for the remaining ten weeks of leave based on the number of hours that the employee would normally be scheduled to work and in an amount that is not less than two-thirds of the employee’s regular rate of pay. The pay provision does, however, cap the amount at $200.00 per day and $10,000.00 in the aggregate.
If the employee had a variable work schedule, then the employee’s paid leave is based on a number equal to the average number of hours that the employee was scheduled per day over the 6 month period ending the date on which the employee takes leave, including hours for which employee took leave of any type. If the employee did not work in the 6 month period, then the paid leave is based on 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.
In the case where the necessity for the leave is foreseeable, the employee must provide the employer with such notice of leave as is practicable.
Upon return from leave, the employee must be restored to the position of employment held by the employee when the leave commenced or an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
The above reinstatement requirements do not apply to employers employing less than 25 employees if the employer can show:
The employee took leave for the reasons outline above;
The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave;
The employer makes reasonable efforts to restore the employee to a position the employee held when leave commenced, with equivalent benefits, pay, and other terms and conditions of employment; and
If reasonable efforts fail to restore employee’s employment, the employer contacts the employee if an equivalent position becomes available within the earlier of:
One year from the date on which the qualifying need related to a public emergency concludes or
One year from the expiration of the 12 week leave.
2. EMERGENCY PAID SICK LEAVE ACT
Also included as part of the as part of the FFCRA is the Emergency Paid Sick Leave Act (“EPSLA”). EPSLA provides paid leave for employees who are unable to work or telework due to a need for leave because the employee:
- is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- is caring for an individual who is subject to a federal, state, or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19;
- caring for the employee’s child if the school or place of care has been closed or the childcare provider is unavailable due to COVID-19 precautions; and
- is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of Treasury and the Department of Labor.
EPSLA also applies broadly to private employers with fewer than 500 employees. As with the EFMLEA, exclusions apply for health care providers and emergency responders. Unlike the EFMLEA, however, employees are immediately eligible for paid leave and need not have been employed for thirty days.
For full-time employees, paid leave is for 80 hours. For part-time employees, paid leave is for the number of hours the employee works, on average, over a two-week period. The amount of paid leave under the act is dependent upon the reason for the leave and works as follows:
If leave is due to any of the first three reasons listed above, then the employee is entitled to paid leave up to $511 per day, but no more than $5,110 aggregate.
If leave is due to the last three reasons listed above, then the employee is entitled to paid leave up to $200 per day, but no more than $2,000 aggregate.
These provisions under both acts will sunset on December 31, 2020.