Employers obligations under the Families First Coronavirus Response Act

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The FFCRA will be in effect no later than April 2, 2020 and may be implemented sooner.

The FFCRA was designed to address several issues caused by the COVID-19 Coronavirus in the United States. 

We understand that this pandemic has brought a lot of uncertainty to our local small businesses and we feel it is only necessary to keep you up to date and to help explain exactly what these new measures mean for you and your business. For the purposes of this blog, however, we will focus on how two provisions of the FFCRA and how they will affect private employers:

1. Emergency Paid Sick Leave Act (“EPSLA”)  

2. Emergency Family and Medical Leave Expansion Act

 

Emergency Paid Sick Leave Act (“EPSLA”) 

Covered Employers

 The EPSLA covers private employers with less than 500 employees. However, some of the obligations under the EPSLA may differ slightly if the covered employer is a signatory to a multiemployer collective bargaining agreement. In addition, the EPSLA exempts health care providers and emergency responders.

Private employers with less than 50 employees may be exempt from the EPSLA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” Unfortunately, what constitutes sufficient jeopardy to allow for an exemption is not currently known as the EPSLA requires the Secretary of Labor to issue regulations defining this section.

 

Amount of Leave 

A full-time employee is entitled to eighty (80) hours of paid sick time.

A part-time employee is entitled to the number of hours equal to the number of hours the part-employee works, on average, over a two-week period.

There is no waiting period under the EPSLA. Employees are entitled to take paid sick leave pursuant to this section immediately upon being hired.

 

Covered Sick Leave 

Paid sick leave under the EPSLA is currently limited to those employees, who unable to work or telework, as a result of the COVID-19 virus and include:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  1. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  1. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  1. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
  1. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; and
  1. 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. Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Compensation for Sick Leave 

The amount of compensation owed to an employee taking sick leave under the EPSLA depends on several factors and, for highly compensated employees, may be less than their regular salary.

Employees who take leave under paragraphs 1, 2, and 3 above are to paid their regular rate of pay, up to a maximum of $511 per day or $5,110 total (please note, leave taken under the EPSLA does not need to be consecutive). Therefore, employees with an annual salary of less than $132,860 will receive their regular rate of pay for leave taken under the first three paragraphs above.

Employees who take leave under paragraphs 4, 5, and 6 above (for instance, to care for a child due to a school closing), are to be paid their regular rate of pay, up to a maximum of $200 per day or $2,000 total. Therefore, employees with an annual salary of less than $52,000 will receive their regular rate of pay for leave taken under the last three paragraphs above.

 

Interaction with Current Policies 

The paid sick leave under the EPSLA is in addition to current sick leave or personal time off offered to employees. Employers may not require employees to exhaust paid time off currently offered to the employees before electing to use the paid sick leave under the EPSLA. However, please keep in mind absences for reasons outside of the six identified above are not covered under the EPSLA and would be subject to businesses’ current policies.

 

 

Emergency Family and Medical Leave Expansion Act (“EFMLA”) 

Covered Employers 

All private employers with less than 500 employees are subject to the EFMLA. This is a significant change from the requirements of the Family and Medical Leave Act, which only applied to employers with 50 or more employees.

Like the EPSLA, however, the Secretary of Labor is to issue regulations in which private employers with less than 50 employees  may be exempt from the EFMLA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

 

Covered Employees 

Unlike the EPSLA where an employee is eligible for paid sick leave immediately upon beginning employment, employees must have been employed for at least thirty (30) calendar days in order to be eligible for leave under EFMLA. 

 

Amount of and Cause of Leave 

Eligible employees may take up to twelve (12) weeks of leave when he or she is unable to work or telework for a “qualifying need related to a public health emergency.”  At this time, a qualifying need only occurs when an employee is unable to work or telework due to a need to care for his/her minor child or minor children (under age 18) if the child’s school or place of care has been closed, or the employee’s child care provider is unavailable, due to an emergency with respect to COVID-19 declared by federal, state and/or local government. 

 

Unpaid and Paid Leave 

The initial ten (10) days of leave under the EFMLA may be unpaid. However, employees may choose to use accrued vacation, sick, or other paid time off during the initial ten days. This includes an employee using his or her paid sick leave under the EPSLA. We expect most employees will choose to do so as the two provisions of the FFCRA were meant to be used in conjunction together.

Once the initial ten day period has ended, if an employee has further need for leave under the EFMLA, covered employers are required to provide the employee with paid leave for the remainder of the EFMLA leave.

Employees are to be paid not less than two-thirds of an employee’s “regular rate” of pay (per the FLSA) for “the number of hours the employee would otherwise be normally scheduled to work.”  The maximum amount a covered employer is required to pay any employee under the EFMLA  is $200 per day, and $10,000 in total.  These payments are in addition to any amount paid to the employee under the EPSLA.

These rules are modified slightly for employees who have schedules that vary from week to week

 

Job Protection 

The employees who take leave under the EFMLA must be restored to their previous position or an equivalent position upon their return from leave. For employers with less than twenty-five (25) employees, however, this requirement may not apply in the following circumstances:

  1. 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 (i) that affect employment, and (ii) are caused by a public health emergency during the period of leave”;
  2. The employer makes reasonable efforts to restore the employee to an equivalent position; and
  3. If the employer’s “reasonable efforts” fail, the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during the following year.

 

This is truly an unprecedented time in our world. We must remember that small businesses are the foundation of our community. We encourage you to support your local businesses however you can, whether it be ordering take out or buying gift cards. 

We will continue to work diligently for you, your family and the businesses that make up our great community. We will also try to keep you up to date with new information as it becomes available.  

If you are an existing Gerbers Law, S.C. client and have any questions regarding the impact of the Coronavirus on your business please call our office at 920-499-5700.

Stay healthy everyone!

 

 Please note that the general information provided on the Gerbers Law, S.C. blog is merely informative and should not be taken as legal advice. The content of Gerbers Law, S.C. blog is based on the state of the law at the time of its original publication. Legal developments can change quickly. As a result, the content of Gerbers Law, S.C. blog may not remain accurate as laws change over time. Your use of this site, as well as commenting, sending an inquiry, or contact email does not create an attorney- client relationship in any way. We highly recommend that you consult with a licensed attorney before you rely or act on this information.

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