In the early evening of March 18, 2020, President Trump signed into law the emergency Families First Coronavirus Response Act (FFCRA) (or H.R. 6201), sweeping legislation passed to curtail the spread of and to combat the impact of the 2019 novel coronavirus (COVID-19) pandemic. The FFRCA does many things, including boosting public benefits to support American citizens facing potential illness, school closures, quarantines and self-isolation due to the corona virus. This article focuses on the significant changes to employee leave laws and their impact on small businesses.
Two new employment leave laws have been enacted:
(1) Emergency Paid Sick Leave Act: which provides up to 80 hours of paid sick leave to employees under circumstances, such as sickness, quarantine by order of federal, state or local agency, and school closures all due to or related to COVID-19; and
(2) Emergency Family Medical Leave Expansion Act: which expands rights to Family Medical Leave for employees who are unable to work due a requirement that the employee remain in quarantine due to exposure to corona virus or the exhibition of corona virus symptoms, or to care for family members who have been so ordered or whose school have closed due to corona virus concerns.
Both laws are effective April 2, 2020. Although employers are expected to foot the bill for this paid leave, they will be able to take tax credits for the paid leave provided to employees under these new laws.
Emergency Paid Sick Leave Act Key Terms
Which Employers Are Required to Provide Leave?
The Emergency Paid Sick Leave Act (PSLA) provisions of the FFCRA apply to all private employers with fewer than 500 employees and public employers with at least one employee.
When Are Employees Entitled to Emergency Paid Sick Leave?
Employers are required to provide employees with paid sick leave for any of the following reasons, all of which are related to COVID-19:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19. This provision would not apply to a business that is deemed an essential business or is otherwise exempt to a Shelter in Place or similar order.
- The employee has been advised by a health care provider to self isolate due to concerns related to COVID-19.
- The employee is experiencing symptoms related to COVID-19 and is seeking a medical diagnosis.
- The employee is caring for a family member who is subject to a quarantine order or has been advised by a health care provider to self-isolate.
- The employee is caring for his or her child because the child’s school has closed, or the child’s care provider is unavailable, due to COVID 19 precautions.
- 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.
How Much Time Off Are Employees Allowed?
Full-time employees are eligible for 80 hours of paid sick leave and part-time employees are eligible for a number of hours equal to the number of hours the part-time employee works on average in two weeks.
How Much Pay Do Employees Get As Sick Pay?
For time taken by an employee to care for his or her ordered self-isolation or quarantine due to symptoms/exposure to COVID 19 or for quarantine ordered by federal, state, or local governmental authority, the employer must pay the sick leave at the employee’s regular rate of pay but the pay does not need to exceed $511 per day or $5110 in the aggregate.
For time taken for the care of a family due to the family member’s school closure, or ordered quarantine or self-isolation or symptoms/illness due to COVID-19 or for symptoms the Secretary of Health and Human Services later designates, sick pay is paid at two-thirds of the employee’s regular rate of pay but it does not need to exceed $200 per day or $2000 in the aggregate.
May I Use My Existing Paid Leave Policies?
No. Employers may not require employees to exhaust their current sick leave before using leave under PSLA. Furthermore, employers cannot change their existing paid leave policies, like vacation or paid time off (PTO). Employers cannot change their existing policies.
Does This Leave Expire or Carry-over to the Next Year?
PSLA sick leave does not carry over from year-to-year and the PSLA entitlements expire on Dec. 31, 2020.
Do I Have to Give My Employees Notice?
Yes. The law requires Employers to post the requirements in the same place that State and Federal workplace posters are currently posted. If you need posters, please contact your attorney.
Emergency Family Medical Leave Expansion Act Key Terms
Which Employers Are Required to Provide Leave?
The Emergency Family and Medical Leave Expansion Act (EFMLA) provisions of FFCRA also apply to private employers with fewer than 500 employees. There is a provision that would allow the Secretary of Labor to exempt employers with fewer than 50 employees if carrying out the requirements would jeopardize the employer’s business and to exclude health care providers and emergency responders. The Secretary of Labor must first promulgate or enact exclusion regulations in order for the exemptions to be available for small employers. The Secretary of Labor has not done so yet.
Which Employees Are Eligible?
Under the EFMLA, employees who have worked for the employer for at least 30 days (a significant change from the one year of employment requirement under the existing FMLA) will be eligible for EFMLA.
When are Employees Entitled to Take EFMLA and How Much EFMLA Must Be Granted?
Eligible employees may take EFMLA for the following reasons (and all reasons relate to COVID -19 concerns) for up to 12 weeks of leave:
- To adhere to a requirement or recommendation by a health care provider or a public health official having jurisdiction that the physical presence of an employee on the job would jeopardize the health of others due to the employee’s exposure to COVID-19 or the employee’s exhibition of symptoms of COVID 19 and the employee is unable to perform the functions of his or her position and comply with such order (for example, the employee cannot work from home and perform his or her job duties while complying with such an order);
- To care for a family member who is adhering to a requirement or recommendation by a health care provider or a public health official that the physical presence of an employee on the job would jeopardize the health of others due to the employee’s exposure to COVID-19 or the employee’s exhibition of symptoms of COVID 19 and the employee is unable to perform the functions of his or her position and comply with such order (for example, the employee cannot work from home and perform his or her job duties while complying with such an order);
- To care for a child under the age of 18 of the employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a declaration of an emergency due to COVID 19 by a federal, state or local authority.
Can Employers Request A Medical Note?
Yes. The Secretary of Labor will be creating leave forms and related certifications by March 26, 2020.
What Amount of EFMLA Leave Must Be Paid?
Under EFMLA, the first two weeks of such leave are unpaid. An employee may choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during this period, but an employer may not require an employee to do so. After the two weeks of unpaid leave, employers must provide up to 10 weeks of paid EFMLA leave at a rate of no less than two-thirds of the employee’s regular rate of pay with a cap of $200 per day and $10,000 in the aggregate.
Is the Leave Job-Protected?
An employer must offer a returning employee the same or equivalent position upon his or her return to work. There is an exception to this requirement for employers with fewer than 25 employees; provided, the employee’s position has been eliminated after EFMLA leave due to an economic downturn or other operating conditions that affect employment caused by a public health emergency during the period of leave. The employer may have to make reasonable attempts to return the employee to an equivalent position, and must continue to do so for up to a year if and after the employee is displaced.
Does EFMLA Expire?
The EFMLA will remain in place for the one-year period following enactment.
Does the Employer Have to Maintain Health Insurance?
Yes. But the employee is still required to pay their share of any insurance that has previously been elected.
Other Key Provisions of FFCRA
Is there a tax credit for employers providing paid leave under these laws?
FFCRA provides tax credits for the employer’s portion of payroll taxes for wages paid to employees taking either paid sick leave or EFMLA pursuant to the FFCRA. The sick leave credit (PSLA) for each employee would be for wages as much as $511 per day while the employee is receiving paid sick leave to care for themselves, or $200 per day if the sick leave is to care for a family member or child if the child’s school is closed. Certain limits apply. The amount of tax credit for qualified family leave wages (EFMLA) for each employee is $200 per day or $10,000 in aggregate.
Do Employers Have Other Obligations?
Yes. Covered employers under these laws must post of notice of the leave obligations.
Still Have Questions?
The application of the PSLA and EFMLA may be complicated. It is important to ensure that these new leave laws are applied correctly. If you have questions, contact Eileen Kennedy, Senior Attorney, Berliner Cohen LLP, at Eileen.Kennedy@berliner.com.