An Employer’s Guide to Paid Leave Under the Families First Coronavirus Response Act

Lauren L. Wood

By Lauren L. Wood

Co-authored by Lauren L. Wood and Hannah E. Mudd

UPDATED 9/21/2020

This chart is intended to provide a general overview of new obligations under the recently enacted Families First Coronavirus Response Act legislation. This new law is complex and subject to regulatory guidance and evolving interpretations. The employment law attorneys at Danna McKitrick, P.C. are available for up-to-date guidance before taking any action. For updated DOL regulations, see Department of Labor’s Updated Regulations for FFCRA effective 9/16/2020.

EMERGENCY FAMILY & MEDICAL LEAVE EXPANSION ACT
(FMLA EXPANSION)

Who must provide leave under the FMLA Expansion?

Employers with less than 500 employees

Who is eligible to
use this leave?

Employees (both full- and part-time) after 30 days from hiring, for the reasons listed below.

Why may an employee use this leave?

The employee is unable to work, either onsite or remotely, because the employee must care for a minor son or daughter whose school or place of care has been closed, or whose care provider is unavailable due to a public health emergency

How long is the
leave?

Up to 12 weeks

What is the required pay during the leave?

The first 10 days may be unpaid. An employee may choose to use accrued PTO for the first 10 days.

This is the employee’s choice and may not be mandated by the employer. After the first 10 days, the employee must receive pay based on the number of hours the employee would normally be scheduled to work. The pay must be two thirds of their regular rate of pay, not to exceed $200 per day or $10,000.00 total.

Is job protection
required for an employee who uses this leave?

Yes, the employee must be able to return to the same or equivalent position.

Are there exceptions to the requirement for job protection?

Yes, job protection requirements may not apply to employers with less than 25 employees, if specific conditions are met and the position is eliminated due to changes
resulting from the public health emergency. In this circumstance, an employee must be placed on a re-hire list for one year.

Are any employers with less than 500 employees exempt from the new FMLA expansion?

Possibly. The Secretary of Labor may choose to exempt small businesses with less than 50 employees if following the requirements would jeopardize the viability of the business.

Note that the Secretary of labor has NOT made this exemption as of the time
of this writing.

Employers of health care providers or emergency responders may exclude such an employee from the benefits of this Act. The regular FMLA definition of health care provider is limited and this exclusion should be applied cautiously.

When is the FMLA Expansion in effect?

April 1, 2020 through December 31, 2020

How will my
business recover the cost of this leave?

With a refundable tax credit equal to 100% of the qualified paid wages required under this Act.

EMERGENCY PAID SICK LEAVE ACT

Who must provide leave under the Emergency Paid Sick Leave Act?

Employers with less than 500 employees.

Who is eligible to use this leave?

All employees immediately upon being hired, for the reasons listed below.

Why may an employee use this leave?

For any of 6 reasons:

1.       A Federal, state or local quarantine order;

2.       A healthcare provider has advised the employee to self-quarantine because of COVID-19;

3.       The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

4.       The employee is a care-giver for an individual (not limited to a family member) subject to an order to quarantine or who has been advised to self-quarantine by a healthcare provider;

5.       The employee must care for the employee’s child whose school or daycare has been closed or if the childcare provider is unavailable due to COVID-19; or

6.       The employee has any other substantially similar condition as (yet to) be specified by the Secretary of Health and Human Services.

How long is the leave?

Two weeks, up to 80 hours. The length of leave for part-time employees is based on the average number of hours worked over a two-week period.

What is the required pay for the leave?

If the leave is taken for reasons 1-3 listed above, the required pay is 100% of the employee’s regular pay up to $511 per day, or minimum wage, whichever is greater. If the leave is taken for reasons 4-6 listed above, the required pay is two-thirds the employee’s regular rate of pay, not to exceed $200 per day, or minimum wage, whichever is greater.

Is job protection required for an employee who uses this leave?

Yes, and retaliation is prohibited.

May an employee be required to use other paid leave first?

No. An employee who meets the requirements to use this leave may elect to use it regardless of what other paid leave is available.

May an employer require an employee using the leave to find someone to cover their scheduled work hours?

No. The Act specifically prohibits this. Employees should not be told to find someone to “cover their shifts” when using this leave.

May an employer alter current leave policies before this Act takes effect?

This is not clear. The Act is subject to different interpretations on this point.

Are there any employers with less than 500 employees exempt from the Emergency Paid Sick Leave Act?

Possibly. The Secretary of Labor may choose to exempt small businesses with fewer than 50 employees if following the requirements would jeopardize the viability of the business. The Secretary of Labor may also allow employers of health care providers or emergency responders to exclude such an employee from the benefits of this Act. Note that the Secretary of Labor has NOT provided for these exemptions as of the time of this writing.

 

When is the Emergency Paid Sick Leave Act in effect?

April 1, 2020-December 31, 2020.

How will my business recover the cost of this leave?

With a refundable tax credit equal to 100% of the qualified paid wages required under this Act.

Additional Resources:

COVID-19 Business Operations for Danna McKitrick

Coronavirus/COVID-19 Resource Center

Posted by Attorneys Lauren L. Wood and Hannah E. Mudd. Wood is a member of Danna McKitrick’s litigation team. She primarily focuses on civil litigation and insurance-related litigation for her clients. She is an experienced litigator in personal injury defense, trial practice, appellate work, and legal research. Mudd is a member of Danna McKitrick’s transaction team. As a member of the team she advises clients on a variety of corporate and business transactions including entrepreneurial, real estate, banking, employment, and corporate formation and governance matters.


4 Responses to “An Employer’s Guide to Paid Leave Under the Families First Coronavirus Response Act”

  1. Marc Treppler on March 22, 2020 7:33 pm

    Does the Stl and Stl County “Shelter in Place order” qualify as a quarantine?

  2. admin on March 23, 2020 9:46 am

    We have not seen anything defining “quarantine” at this time. We will continue looking for further guidance and assume it will depend on the facts. Please contact Ruth Binger or Lauren Wood for further guidance.

  3. Marc Treppler on March 26, 2020 12:57 pm

    Submitting this again as it doesn’t appear it went thru the first try, hope there aren’t two now:

    Found this CDC definition of quarantine and isolation, they don’t mean what I thought:
    Isolation and Quarantine
    Isolation and quarantine help protect the public by preventing exposure to people who have or may have a contagious disease.

    Isolation separates sick people with a quarantinable communicable disease from people who are not sick.
    Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.
    In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.

    https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html

  4. admin on April 2, 2020 8:48 am

    Thank you!

Comments are closed.