On April 1, 2020, the U.S. Department of Labor (DOL) published the first regulations implementing the Families First Coronavirus Response Act (FFCRA). We summarized important points from the laws as follows.
Family First Coronavirus Response Act:
Includes the Emergency Paid Sick Leave (EPSL) and the Emergency Family and Medical Leave (EFMLA).
Effective April 1, 2020. Enforcement is stayed until April 17, 2020.
Covered Employers:
Businesses with fewer than 500 full-time and part-time employees
Employer with fewer than 50 employees (small business) is exempt from providing EPSL and EFMLA due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons if such lease would “jeopardize the viability of the business as a going concern”: A small business may claim the exemption if its authorized officer has determined that:
The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Covered Employees:
EPSL - all employees, regardless of length of employment.
EFMLA - Must have worked for employer for 30 calendar days.
Covered Reasons for Leave: Employee must be unable to work or telework for specified reasons related to COVID-19 where an employee:
is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
is caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2);
is caring for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 related reasons; or
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.
Duration of Leave
For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of paid sick leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Eligible Pay
For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
Misc.
The EPSL is in addition to all federal, state, or company’s own existing paid leave policies.
An employer cannot require a worker to use any other available paid leave before using the EPSL.
EPSL requires employers to post a notice of employees' rights under the EPSL.
If Employer closes worksite after the FFCRA’s effective date (even if employee requested leave prior to the closure), employee is not entitled to paid sick leave or expanded family and medical leave. See #23 to 27 of Q&A published by DOL.
If Employer furloughs employees after the FFCRA’s effective date, employees are not entitled to paid sick leave or expanded family and medical leave. See #23 to 27 of Q&A published by DOL.
Employer cannot require workers to find replacements to cover their hours during time off; or discharging or discriminating against workers for requesting paid sick leave or filing a complaint against the employer related to such.
Please note that the above is not meant to be an all-inclusive summary. Please do not hesitate to contact us if you have any questions or would like to discuss about the relevant legal issues.
