03/24/2020
We are carefully reviewing the various components of the Families First Coronavirus Response Act (“FFCRA”), a comprehensive emergency response act signed by President Trump. Among many other things, the FFCRA establishes mandatory paid sick time, under the Emergency Paid Sick Leave Act (“EPSLA”), and medical leave benefits for eligible employees through amendment of the Family Medical Leave Act (“FMLA”). As with any act which is hastily drafted and signed, this is more a policy statement than a carefully-drafted law. This means we can expect regulations and guidance to be issued, in the next few weeks, to provide additional details on applicability and enforcement. We are monitoring the situation, and will be here to provide information and advice to our clients. While the members of our firm are working remotely, we are fully available to assist you with questions and response strategies.
Here is a very general outline of the provisions of the FFCRA which are most likely to impact our clients.
EMERGENCY PAID SICK LEAVE ACT
Covered Employers: The EPSLA applies to any employer with 500 or fewer employees. The Secretary of Labor may issue guidance or exemptions for smaller employers (less than 50 employees) which are unable to meet the financial requirements of the EPSLA.
Eligibility: The EPSLA applies to all current employees, regardless of their length of employment.
1. An employee who is part of a governmentally-mandated quarantine due to COVID-19;
2. An employee who has been advised, by a medical professional, to self-quarantine due to COVID-19 infection or exposure; [Note: the Act does not cover self-imposed quarantine not required by a doctor or medical professional.]
3. An employee who is actively seeking a medical diagnosis due to symptoms of COVID-19;
4. An employee who is a primary caretaker for someone who falls in categories 1 – 3;
5. An employee who is caring for his/her child, because the child’s school, or other day-care facility, has been closed due to COVID-19;
6. An employee who is subjected to any condition which the Departments of Health and Human Services, Treasury, and Labor, deem to be covered under the EPSLA. HHS is expected to issue additional information on what this final eligibility item actually means. For now, it is just a catchall in a hastily drafted act.
PTO: Effective April 02, 2020, the EPSLA requires all covered employers to provide up to 80 hours of PTO for any eligible employee. Leave under the EPSLA may be taken without advance notice. Employers may not require employees to use other sources of sick and unpaid leave before utilizing the leave granted under the EPSLA.
Employees applying for PTO under eligibility items 1, 2, and 3, above, shall receive paid sick leave at their average regular rate. However, the paid sick leave shall not exceed $511 per day, or $5,110 total, for each employee.
Employees applying for PTO under eligibility items 4, 5 and 6, above, shall receive paid sick leave at 66% of their average regular rate. However, the paid sick leave shall not exceed $200 per day, or $2000 total, for each employee.
FMLA EXPANSION
The FMLA expansion applies to all employers with fewer than 500 employees. Unlike other provisions of the FMLA, to be eligible, employees must only have worked for the employer for 30 days.
A covered employee, who is unable to work (including remote work), may take up to 12 weeks of FMLA leave, if the employee is the primary care-giver for his/her child (under 18 years of age), whose school (or day care) has been closed due to COVID-19.
The first 10 days of leave, taken under these expanded FMLA provisions, is unpaid. However, the employee may utilize other forms of paid leave (such as the benefits under the Paid Sick Leave Act – eligibility item 5) during the initial 10 day period. Thereafter, the employee is entitled to be paid 66% of the regular wages he/she would have been scheduled to earn during the benefit period. This benefit may not exceed $200 per day, or $10,000 total, for each employee.
For employers with 25 or more employees, any employee returning from the expanded COVID-19 FMLA leave is entitled to reinstatement to the employee’s former position, or an equivalent position.
For employers with fewer than 25 employees, any employee returning from the expanded COVID-19 FMLA leave is entitled to reinstatement to the employee’s former position, or an equivalent position, unless his/her former position has been eliminated due to economic harm caused by the COVID-19 health crisis. In such cases, the employer has an affirmative duty, for one year, to contact any such employee if an equivalent position becomes available.
Employers may effect “practicable” notice requirements for applications for expanded FMLA leave relating to COVID-19.
TAX CREDITS
Employers will receive tax credits, applicable to employer Social Security tax contributions, for 100% of the qualified sick leave and FMLA leave paid under the FFCRA. Employers will be reimbursed if their costs for qualified sick leave, or qualified family leave wages, exceed the taxes they would owe. Credits and reimbursements will be based on quarterly caps established in the FFCRA.
