Families First Coronavirus Response Act

On March 18, 2020, the President signed into law the “Families First Coronavirus Response Act” (“FFCRA”). The provisions discussed below will become effective “no later than” April 2, 2020, and will expire on December 31, 2020. The Department of Labor is expected to issue regulations and a model notice that, once issued, employers must provide to employees. 

• Eighty (80) hours of paid sick leave (or the equivalent of two weeks for part-time employees) for many workers affected by the coronavirus.

• Twelve (12) weeks of job-protected leave for parents caring for a son or daughter under age 18 due to school closures, daycare closures, or childcare disruptions. The first ten (10) days of this leave may be without pay; the remainder is with pay at 2/3 of the employee’s regular rate.

• The Emergency Paid Sick Leave Act (“PSLA”) portion of the FFCRA requires all public employers and private employers with fewer than 500 employees to provide their employees with two (2) weeks of paid sick leave if the employee is unable to work (or telework) due to a need for leave because:

 

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

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

(4) 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).

(5) 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.

(6) 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.

• All employees are entitled to PSLA, regardless of length of service. However, an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.

 For full-time employees, up to 80 hours, at their regular rate of pay. 

 For part-time employees, up to the number of hours that the employee works, on average, over a 2-week period.

 When needed for reasons #1, #2 and #3 above, sick leave is paid at the employee’s regular rate of pay and is capped at $511 per day or a total of $5,110. 

 When needed for reasons #4, #5 and #6 above, sick leave is paid at two-thirds (2/3) of the employee’s regular rate; and is capped at $200 per day or a total of $2,000.

• These PSLA benefits do not carry over after the end of the year. If unused, they are not payable on termination of employment.

• Employers may not require employees to use employer-provided sick time benefits before using PSLA. This likely means that PSLA must be paid in addition to (but not on top of) other paid sick time benefits available to the employee.

• A failure to comply with the law is treated as a violation of the minimum wage requirements of the Fair Labor Standards Act, such that liquidated damages and attorney’s fees are awardable in addition to amounts owed. The law also includes anti-retaliation protections.

• All public employers and all private employers with fewer than 500 employees are covered. However, an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees. Also, the Department of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees if the law’s requirements would jeopardize the viability of the business. (The Act exempts employers with fewer than 50 employees in a 75-mile radius from damages in a civil lawsuit brought by an employee, but does not exempt such employers from enforcement actions by the Department of Labor.) 

• Anyone who has been employed for at least 30 calendar days is entitled to PHE Leave, whether full-time or part-time. 

• An eligible employee can take job-protected PHE Leave if he or she is unable to work or telework due to the need to care for a son or daughter under 18 years of age if the school or place of care has been closed or the child care provider is unavailable, due to a public health emergency (defined as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority”).

• The first ten (10) days of the PHE Leave may be unpaid. The employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave (including the PSLA described above) during the leave. The employer cannot force an employee to use their accrued paid leave. 

• After the 10 days of unpaid leave, employers must pay employees during PHE Leave (for the reason listed above) at no less than two-thirds of the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled to work. This paid leave is capped at $200 per day and $10,000 total.

• The Act uses expanded definitions of “parent” and “family member” as follows:

 “Parent” is defined as a biological, foster or adoptive parent of the employee; a stepparent of the employee; a parent-in-law of the employee; a parent of a domestic partner of the employee; or a legal guardian or other person who stood in loco parentis when the employee was a child.

 “Family member” is defined as a parent, spouse, son or daughter under age 18, as well as “an individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs” and who is a son or daughter of the employee, a next of kin of the employee for whom the employee is next of kin; or a grandparent or grandchild of the employee.

• As with the existing FMLA, PHE Leave is job-protected, meaning the employer must return the employee to the same or equivalent position upon their return to work. There is an exception to this requirement for employers with fewer than 25 employees if the employee’s position does not exist after PHE Leave due to an economic downturn or other operating conditions that affect employment caused by a public health emergency during the period of leave (subject to certain conditions, including reasonable attempts to return the employee to an equivalent position, and required efforts to contact a displaced employee for up to a year after they are displaced).

PSLA and any PHE Leave benefits are not subject to FICA and Medicare taxes, so employers may wish to pay the benefits under a separate payroll code to have a clear record of what is being paid under the FFCRA. The Act also provides for certain payroll tax credits for employers providing PSLA benefits or paid PHE Leave, including tax relief for self-employed individuals.

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Copyright 2020 HolmstromKennedy - All rights reserved. This content was last reviewed and updated on March 20, 2020, and is used with permission from HolmstromKennedyPC. It is distributed with the understanding that the authors and publisher are not rendering legal or other professional advice or opinions on specific facts or matters, and accordingly, assume no liability whatsoever in connection with its use.