On Wednesday, March 18, 2020, President Donald Trump signed H.R. 6201 into law. The Families First Coronavirus Response Act (FFCRA) was introduced to meet some immediate needs arising from the coronavirus pandemic including food assistance, coronavirus testing, and additional protections for health care workers. Additionally, the FFCRA includes specific provisions that impact employers with 500 or fewer employees, including provisions that:
require employers to provide Emergency Paid Sick Leave to employees,
provide paid Emergency Family and Medical Leave Expansion to employees that need leave to care for children whose school or childcare is closed, and
expand unemployment benefits and provide grants to states for processing and paying claims.
When developing this bill, there was debate on how employees would receive payment for the Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion. In the final version of the bill, the employer is required to provide the pay for these leaves; however, private employers will receive a tax credit for 100% return of the cost for these leaves on their quarterly payroll taxes. If an employer pays out more to employees for these provisions than they owe for quarterly taxes, the employer would receive a refund. If the employer does not have the money to make the payments, they may fill out an online form with the IRS to direct deposit a check into the employer’s account to pay the employees.
Although the bill was enacted on March 18th, it becomes effective 15 days from that date of enactment. That means that employers have into April 2nd to understand the requirements and have all their processes in place to meet these provisions.
It’s important to note that although the new bill does not apply to employers with more than 500 employees, there are employment laws to consider. For example, employees infected with coronavirus may be entitled to FMLA; however, employees are not entitled to FMLA in order to avoid exposure to the coronavirus.
Emergency Paid Sick Leave
Employers with 500 or fewer employees will be required to provide two weeks paid sick leave to any employee, regardless of how long they have been employed, if the employee is:
subject to a federal, state, or local quarantine or isolation order related to COVID-19;
advised by a health care provider to self-quarantine because of COVID-19;
experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
caring for an individual subject or advised to quarantine or isolation;
caring for a son/daughter whose school or place of care is closed due to COVID-19; or
experiencing other substantially similar conditions specified by the Secretary of HHS
Certain health care providers and emergency responders are excluded from the definition of eligible employee under the Emergency Paid Sick Leave.
Calculating Leave Time
The amount of leave for full-time employees is straight forward at 80 hours. Part-time employees are entitled to a pro-rated amount based on the hours they typically work in a two-week period. However, what if you have variable hour employees whose schedule varies from week to week? In this case, it depends on how long the employee has worked for the employer. If they have worked for the employer less than 6 months, use the average number of hours per day that the employee was reasonably expected to work at the time they were hired. If they have worked for the employer longer than 6 months, use the average number of hours that the employee was scheduled per day over the 6 month period immediately preceding the leave.
Calculating Leave Pay
The amount of pay for the time the employee uses Emergency Paid Sick Leave must be the greater of:
their regular rate of pay;
federal minimum wage;
applicable state minimum wage; or
applicable local minimum wage
This will particularly come into play for employees that receive tips. Most employers take a tipped wage credit against the applicable minimum wage for tipped employees. While the bill doesn't specifically address this issue, it doesn’t appear that is an option for payment of this leave.
The amount of pay will also depend on which reason the employee is using leave. Employees using leave for items 1, 2, or 3 above will receive 100% of their hourly wage for the time used; however, it is capped at $511 per day. Employees using leave for items 4, 5, or 6 will receive two-thirds of their hourly wage for the time used; however, it is capped at $200 per day.
Notice Requirements
Employers will be required to post a notice about Emergency Paid Sick Leave along with their other employment related postings. The Secretary of Labor should provide a model notice by March 25th. Although employees may be asking questions regarding these new leaves, you may want to wait to send out a formal notice until the model notice is available to make sure you use the proper language required by the legislation. However, you may want to send out a brief statement indicating you are reviewing the new law and its provisions in an effort to protect our workers and ensure we all remain healthy. "As soon as more information is available, we will send additional communication. In the meantime, please don't hesitate to contact HR with any questions or concerns."
Below is a draft leave request form that may be customized. Please note this is not a legal document and must be reviewed and customized specifically for the employer.
Emergency Family and Medical Leave Act (FMLA) Expansion
In addition to the Emergency Paid Sick Leave, the bill expands leave under FMLA to employees who have been employed for at least 30 days if the employee is unable to work (or telework) due to a need for leave to care for their child if their school or daycare has been closed sue to COVID-19.
Unlike FMLA, this Emergency FMLA Expansion applies to all employers with fewer than 500 employees; however, the bill allows the Secretary of Labor to exempt employers with fewer than 50 employees from the emergency FMLA leave and emergency sick leave requirement, "when the imposition of such requirements would jeopardize the viability of the business as a going concern."
Certain health care providers and emergency responders are also excluded from the definition of eligible employee under the Emergency FMLA Expansion.
Amount of FMLA Available
The amount of FMLA available for this qualifying reason is the same 12 weeks offered to employees under FMLA. The hourly calculation of time available for each week of FMLA will be determined the same as the hourly calculation under the Emergency Paid Sick Leave.
Emergency Paid Sick Leave does not carry over and unused time is not paid out to employees. This provision of the bill expires on December 31, 2020.
Pay During FMLA Leave
The first 10 days of leave can be unpaid; however, the employee may choose to use any employer provided leave available to them at that time (including Emergency Paid Sick Leave). Keep in mind, the employer cannot force the employee to use any available leave during this time. The remaining 10 weeks must be paid at two-thirds the employee’s regular rate of pay, up to $200 per day.
Other FMLA Considerations
Please keep in mind that if an employer employs more than 50 employees in a 75 mile radius, they are still bound by all the other provisions of FMLA (in addition to this new expansion). Those provisions remain unchanged in regard to eligibility, qualifying reasons for FMLA, substitution of paid leave, etc… As mentioned above, a coronavirus infection may qualify as a serious health condition:
If overnight stay in hospital;
If incapacity for more than 3 full calendar days along with a doctor’s visit (including virtual visits) and continuing treatment
If complications to underlying chronic conditions
Employers should expect difficulties with obtaining certifications. Certifications will be slow or non-existent as the health care system has other priorities. I believe employers can make the argument to waive the certification for leaves because of a coronavirus infection without creating a precedent for other leaves. These are unusually different circumstances.
Unemployment Benefits
Unfortunately, businesses are facing extremely difficult decisions during this time. Temporary furloughs (leaves without pay) or closures may be necessary. The FFCRA includes incentives for state unemployment offices to waive waiting periods and other typical provisions of unemployment (such as searching for other work) for unemployment claims related to COVID-19. Make sure to check your state Department of Labor site to determine if they are waiving those provisions.
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