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Written By: Kylie E. Mote

On Wednesday, March 18, 2020, President Trump signed into law H.R. 6201, otherwise known as the “Families First Coronavirus Response Act” (FFCRA). The legislation is intended to provide relief for individuals who have been affected by the COVID-19 (Coronavirus) outbreak. The support includes paid sick leave benefits and paid protected family leave for employees of certain businesses.
Below is a summary of key provisions impacting employers.

EMERGENCY PAID SICK LEAVE

Which employers are required to provide paid sick leave benefits?

The law applies to private sector employers with fewer than 500 employees as well as government entities.  Certain exceptions may apply (see below).

When can an employee use paid sick leave and how much paid sick leave is required?

Paid sick leave is available to employees who are unable to work (or telework) because of the following:

  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 healthcare 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 a federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the 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.

Full-time employees are entitled to 80 hours of immediately-available paid sick leave.  Part-time employees are entitled to paid sick leave in an amount that is equivalent to their normal work hours in a two-week period.

What is an employee’s rate of pay when taking paid sick leave under the FFCRA?

In cases in which employees are using paid sick leave to care for themselves, they must be paid their normal rate of pay or minimum wage – whichever is greater.  In cases in which employees use paid sick leave to care for others, they are entitled to two-thirds of the foregoing rate.

With respect to self-care, paid sick leave is capped at $511/day and $5,110 in the aggregate.

Paid sick leave to care for others is capped at $200/day and $2,000 in the aggregate.

Self-employed workers are also eligible for reimbursable tax credits.

Can an employer require an employee to use vacation time or other paid time off before using paid sick leave?

No.  The law prohibits employers from requiring an employee to use vacation or other paid time off before using paid sick leave.

The law states that paid sick leave cannot diminish the rights of an employee under any other law or existing employer policy.

Can an employer require an employee to find a replacement to cover a shift or schedule?

No.

Are there any exceptions to the paid sick leave requirements?

The Department of Labor is authorized to exempt businesses with fewer than 50 employees when the imposition of paid sick leave requirements would jeopardize the “viability of the business.”

Employers of healthcare workers and/or emergency responders may exclude those employees from paid sick leave provisions.

Are employers required to provide notice to employees of their rights to paid sick leave?

Yes.  Employers are required to post a notice in a conspicuous location in the workplace.  The Department of Labor will make a model notice available by March 25, 2020.

Are there consequences for employers who fail to meet paid sick leave requirements?

Employers may not discriminate or otherwise take adverse action against employees who use or request use of paid sick leave.

Employers who fail to abide by paid sick leave requirements may be subject to significant civil penalties and fines.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

What is the difference between emergency leave and the traditional leave provided under the FMLA?

The emergency leave provided under the FFCRA amends the FMLA to provide job-protected leave for a public health emergency related to COVID-19.

Employers should note the key differences between emergency leave and traditional FMLA leave: 1) employers with less than 50 employees are required to provide emergency leave; 2) emergency leave removes the 12-month/1,250-hour employee qualification requirement; and 3) emergency leave is paid after the first ten days.

Which employers are required to provide emergency leave to employees?

As is the case regarding paid sick leave, the law applies to private sector employees with fewer than 500 employees and government entities.  Certain exceptions may apply (see below).

When can an employee use emergency leave and how much emergency leave is required?

Eligible employees may use emergency leave when they are unable to work (or telework) because they need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to the COVID-19 outbreak.

Eligible employees are entitled to up to 12 weeks of emergency leave.

Who is an eligible employee?

Any full-time or part-time employee who has been on the job for at least 30 days.

Are employers required to pay employees who use emergency leave?

An employer is permitted to designate the first ten days of emergency leave as unpaid (although an employee can opt to use vacation time or other paid time off for those days).

Beyond the first ten days, emergency leave is paid at two-thirds of the employee’s normal rate of pay with a cap of $200/day and $10,000 in the aggregate.  

Are employees who use emergency leave entitled to the same position upon return?

Employers must return employees to the same or equivalent position upon their return to work.

An exception to this requirement may apply to employers with fewer than 25 employees when the employee’s position does not exist after the emergency leave period due to changes in the employer’s operating conditions (e.g., dramatic economic downturn) caused by COVID-19.

Are there any exceptions to emergency leave requirements?

The Department of Labor is authorized to exempt businesses with fewer than 50 employees when the imposition of emergency leave requirements would jeopardize the “viability of the business.”

Employers of healthcare workers and/or emergency responders may exclude those employees from emergency leave provisions.

ADDITIONAL FAQs

When does the law become effective?

The law takes effect on April 2, 2020 and is designated to expire on December 31, 2020.

What if businesses cannot afford to provide paid sick leave or emergency leave?

Subject to certain caps and limits, the FFCRA provides refundable tax credits to employers to cover wages paid to employees who take paid sick leave or emergency leave.

Eligible businesses may be able to receive an exemption if they can show that the paid sick leave and emergency leave requirements jeopardize the viability of their businesses.

The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the rapidly-developing COVID-19 public health emergency.

If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley at (602) 792-3535 or Kylie Mote at (602) 792-3523.