Posted: March 21, 2020 |
“Update Alert: On March 24, 2020, the U.S. Department of Labor makes FFCRA effective on April 1, 2020.”
President Trump signed into law the Families First Coronavirus Response Act (FFCRA) (H.R. 6201) [CM1] on March 18, 2020. The law has many provisions that employers must be aware of as it creates significant changes in an employer’s sick pay and Family and Medical Leave Act (“FMLA”) obligations. The FFCRA affects all employers with less than 500 employees and applies to businesses that have less than the fifty (50) employee threshold normally required for FMLA eligibility. This is an emergency law passed to address various problems arising from the COVID-19 (Coronavirus) outbreak. Below is a summary of the requirements employers must be aware of to ensure they are complying with this new Federal Law.
Emergency Paid Sick Leave Act Under the FFCRA:
The Emergency Paid Sick Leave Act (EPSLA) requires that all employers with fewer than 500 employees (those with more are exempt from this law) provide emergency paid sick leave to their employees. The EPSLA will become effective within 15 days after the date the Act was passed (April 2, 2020 at the latest) and expires on December 31, 2020. The Secretary of Labor is authorized to implement the law sooner.
Under the EPSLA, all private employers that employ fewer than 500 employees must provide emergency paid sick leave to any employee, regardless of length of employment, who is unable to work (or telework) due to a need for leave as the result of:
1. The employee being subject to a Federal, State, or local quarantine or isolation order related to COVID-19. Governor Newsom’s Executive Order N-33-20 issued on March 19, 2020 triggers this obligation.
2. The employee being advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee caring for an individual who is subject to a Federal, State, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
5. The employee caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of a son or daughter is unavailable, due to COVID-19 precautions.
6. The employee experiencing substantially similar conditions to COVID-19 as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Covered employers must provide emergency paid sick leave in addition to any other paid sick leave, vacation, or paid time off (“PTO”) that an employee would be entitled to under the employer’s policies or state law.
This emergency paid sick leave must be provided at the employee’s regular rate of pay up to a cap of $511 per day (or $5,111 in the aggregate) if it is for the first, second, or third reason above.
Employees taking emergency paid sick leave for the fourth, fifth, or sixth reasons above can be paid at two-thirds their regular rate, up to a cap of $200 per day (or $2,000 in the aggregate).
Employers must provide full-time employees 80 hours of emergency paid sick leave. Part-time employees must receive emergency paid sick leave equal to the number of hours the part-time employee works during a typical two-week period, based upon an average from the last six months of employment. Employers cannot require an employee to use other paid leave available from the employer prior to utilizing this leave, so long as the employee falls under one of the six specified needs for leave.
On or before March 25, 2020 the Secretary of Labor is required to make publicly available a model notice regarding the requirements of the EPSLA. Every employer is required to post this notice in conspicuous places on the employer’s premises where notices to employees are customarily posted.
Employers cannot discharge, discipline or discriminate against an employee who takes leave under the EPSLA or files a complaint. If an employer violates this Act, it will be considered a failure to pay minimum wages in violation of the Fair Labor Standards Act and will subject the employer to penalties.
Emergency Family and Medical Leave Expansion Act (Emergency FMLA Leave) Under the FFCRA:
The Emergency FMLA Act requires employers with fewer than 500 employees to provide paid emergency FMLA leave to eligible employees. The Emergency FMLA Act also becomes effective within 15 days after passage (April 2, 2020 at the latest) and expires on December 31, 2020. As with the Emergency Paid Sick Leave Act, the Secretary of Labor is authorized to implement the law sooner.
The Emergency FMLA Act extends emergency FMLA leave obligations to private employers with fewer than 500 employees, including employers with less than 50 employees. Additionally, an employee employed for at least 30 days is eligible for emergency FMLA leave.
Covered employers must provide eligible employees up to 12 weeks of emergency FMLA leave for “a qualifying need related to a public health emergency.” A “qualifying need related to a public health emergency” is triggered when an employee is “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of employee if the school or place of care has been closed, or the child care provider of son or daughter is unavailable, due to a COVID-19 public health emergency declared by a Federal, State, or local authority.”
Under the Emergency FMLA Act, the first 10 days of leave may be unpaid. However, an employee may elect to utilize any accrued vacation leave, personal leave, or medical or sick leave (including emergency paid sick leave) during this 10-day period.
After the first 10 days of leave, an employer must pay the employee for up to 10 weeks of emergency FMLA leave at two-thirds the employee’s regular rate of pay (capped at $200 per day and $10,000 in the aggregate) so long as the leave is needed to provide child care.
Employers must remember that when an employee becomes sick as result of coronavirus, the employee may use other forms of available vacation, PTO, or other applicable leaves, as well as “traditional” unpaid FMLA leave for a serious health condition.
The Emergency FMLA Act also provides for job restoration rights unless the employer has fewer than 25 employees and the employee’s position no longer exists due to economic conditions or changes in operations caused by the public health emergency.
For both emergency paid sick leave and the emergency FMLA leave, certain employers of health care providers and emergency responders may be exempt. Employers with fewer than 50 employees may also seek an exemption, if it would jeopardize the viability of the business as a going concern. However, the Secretary of Labor is the one with authority to determine whether to provide these exemptions.
The Families First Coronavirus Response Act provides tax credits to employers in an effort to compensate them for providing emergency paid sick leave and/or emergency FMLA leave. If you need assistance navigating the ever-evolving workplace under the specters of COVID-19, including understanding your obligations under the Families First Coronavirus Response, the employment attorneys at Ferruzzo & Ferruzzo, LLP are here to help.
Authors: James F. Rumm Esq, and Alison C. Gibbs, Esq
Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group. Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims. Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices
James F. Rumm, Esq. is a Senior Associate and member of Ferruzzo & Ferruzzo, LLP’s Employment Practices Group. James focuses on employment litigation, wage and hour class action defense, defense of discrimination, harassment and retaliation claims, complex business litigation, and trial work. James has trial experience in a wide range of areas including business litigation matters, employment litigation, personal injury and product liability matters. James has also argued on several occasions before both the California Court of Appeal and the Ninth Circuit Court of Appeals.