Employer Obligations Under Families First Coronavirus Response Act

Yesterday, President Trump signed into law the Families First Coronavirus Response Act (FFCRA) in response to the ongoing spread of COVID-19. The FFCRA goes into effect on April 2, 2020. This update provides essential information to employers concerning their duties to provide job-protected leave and pay to employees affected by COVID-19 and sets forth relevant portions below.

Paid Family Leave

The FFCRA includes a temporary expansion (note: the other provisions of FMLA are still in effect) of the Family and Medical Leave Act (FMLA) through December 31, 2020 to allow 12 weeks of FMLA-protected leave to be used when, due to a COVID-19-related public health emergency:

• An employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 because their child’s school or childcare facility is closed; or
• The child's usual childcare provider is unavailable.

Which employers and employees are covered?

• Employers with fewer than 500 employees are required to extend this emergency family leave to any employee who has been employed for at least 30 calendar days.
• Within 15 days of the statute’s March 18 date of enactment, the Secretary of Labor may issue guidelines exempting the following from this FMLA-related leave:
  
  • Certain healthcare employees and first responders (the statute also states that employers of such employees “may elect” to exclude them from this leave); and
  • Businesses with fewer than 50 employees for whom extension of this benefit would “jeopardize the viability of the business as a going concern.”

Are employers required to provide any pay during this leave?

• The first 10 days of leave for this purpose are unpaid. However, the employee can elect (but may not be forced) to use accrued vacation, paid time off (PTO) or sick leave during the 10-day period.
• After the initial 10-day period of unpaid leave, employees are eligible to receive from their employer the lesser of $200 per day or two-thirds of the employee’s regular rate of pay. Total benefits are capped at $10,000 (10 weeks of $200/day).

Are employees entitled to reinstatement?

Yes. Leave taken under this provision is protected, meaning that an employee who uses this FMLA leave is entitled to reinstatement to the same or equivalent position, unless:

• The employer has fewer than 25 employees;
• The position held by the employee at the time the leave started no longer exists due to economic conditions or other operating conditions caused by the public health emergency;
• The employer attempts to restore the employee to an equivalent position; and
• The employer makes reasonable efforts to contact the employee if an equivalent position becomes available for one year following (a) the end of the public health emergency, or (b) 12 weeks after the leave commenced, whichever is earlier.

Paid Sick Leave

The FFCRA also provides 10 days (80 hours for full-time employees and equivalent of two weeks for part-time employees) of sick leave for employees experiencing the following COVID-19-related events:

• Experiencing symptoms and seeking diagnosis for COVID-19;
• Providing care for a family member who is experiencing symptoms and seeking diagnosis for COVID-19;
• Placed in quarantine by healthcare provider or government agency; or
• Care for a child whose school/childcare center has closed due to COVID.

Which employers and employees are covered?

• All employees are covered, regardless of duration of employment.
• Covered employers are the same as for FMLA-related leave: fewer than 500 employees.
• Within 15 days of the statute’s March 18 date of enactment, the Secretary of Labor may issue guidelines exempting the following from the paid sick leave:
  
  • Certain healthcare employees and first responders; and
  • Businesses with fewer than 50 employees, but only from the duty to provide paid leave while an employee is on leave for the purpose of caring for a child whose school/childcare center has been closed due to COVID (and for no other COVID-qualifying event) if that imposition would “jeopardize the viability of the business as a going concern.”

Are employers required to provide any pay during this leave?

• If the leave is taken for an employee’s own care, it should be paid at the employee’s regular rate of pay, up to a maximum of $511/day or $5110 total.
• If leave is taken for another person’s care, it should be paid at two-thirds of the employee’s regular rate of pay, up to a maximum of $200/day or $2000 total.

Does this sick leave carry over from one year to the next?

No. The paid sick time ceases beginning with the employee’s next scheduled work shift immediately following the termination of their need for sick time.

Can I require employees to use other accrued paid time off first?

No. Employers may not require employees to use other paid leave before using sick time for the above-listed purposes.

Tax Credit

Employers may claim a quarterly tax credit for 100 percent of the amounts paid out under both sick leave and family leave provisions. Employers should set up two new pay codes (one for sick leave and one for family leave) in their payroll systems to track the use of this time so that payroll processors and accountants can take the credit.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.