On March 18, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA is effective April 1, 2020. The Department of Labor also issued guidance and detailed FAQs, addressing various hypotheticals.
Below are answers to some frequently asked questions about provisions of the FFCRA that are of particular importance to employers: the emergency expansion of the Family and Medical Leave Act (FMLA) and emergency paid sick leave.
When does the FFCRA apply?
The FFCRA applies in the event of a “public health emergency.” “Public health emergency” is defined as “an emergency with respect to coronavirus declared by a Federal, State, or local authority.” Because the President declared a national emergency on Friday March 13, we are already in a public health emergency.
Who do these provisions apply to?
Employers with fewer than 500 employees and government employers. However, the Secretary of Labor can exempt small businesses (fewer than 50 employees) from providing emergency paid sick leave and expanded FMLA for employees who use the leave to provide childcare. Small businesses seeking exemption must show the required leave would “jeopardize the viability of their business.” The FFCRA also excludes employers with fewer than 50 employees in a 75-mile radius from civil FMLA damages in an employee-initiated lawsuit.
How do I calculate how many employees I have?
According to DOL guidance, you should count all fulltime and part-time employees within the US (including DC and any territories) at the time your employee’s leave is to be taken. This includes employees on leave, temporary employees who are jointly employed by you and another employer and day laborers supplied by a temporary agency. Independent contractors under the FLSA are not considered employees for the employee threshold calculation.
How long will the FFCRA be in effect?
The FFCRA is currently set to stay in place until December 31, 2020.
Is it retroactive?
No, the FFCRA is not retroactive.
Emergency FMLA Expansion.
How much leave are employees entitled to under the FFCRA’s expansion of FMLA?
Employees who have been employed for 30 days or more are entitled to up to 12 weeks of job-protected FMLA leave for a “qualifying need.”
What is a “qualifying need”?
A qualifying need is limited to instances in which an employee is unable to work or telework because his or her child’s school, day care, or childcare is unavailable due to a coronavirus concern. Note: it does not apply to when an employee is experiencing symptoms, in quarantine, or caring for an individual with symptoms or in quarantine.
Is the leave paid?
The first 10 days may be unpaid and employees may elect to use other paid benefits to cover that time period. After the first 10 days, the leave must be paid at no less than two-thirds of the employee’s regular rate of pay. However, the required pay is capped at $200 per day and $10,000 in total.
Emergency Paid Sick Leave.
What does the FFCRA require?
It requires employers to provide emergency paid sick leave in addition to what the employer already provides in certain circumstances.
Who does it apply to?
It applies to all employees, regardless of the amount of time the employee has been employed by the employer.
In what circumstances can an employee take sick leave under the FFCRA?
Sick leave under the FFCRA can be used: (1) if employee is subject to a Federal, State, or local quarantine or isolation order related to coronavirus; (2) if employee is diagnosed with or experiencing symptoms of coronavirus or is quarantined; (3) to care for an individual experiencing symptoms or who is quarantined; (4) to provide child care due to a school closure or childcare is unavailable due to a coronavirus concern or (5) if the employee is experiencing substantially similar symptoms as specified by the Secretary of Health and Human Services.
Note that “quarantine or isolation order” are not defined by the statute. Employers may not require or request documentation or certification from a doctor.
How much leave do employees get?
Full-time employees are entitled to up to 80 hours of paid sick leave during the effective period of the Act. Part-time or hourly employees are entitled to the number of hours the employee was scheduled to work for 2 weeks, or the number of hours the employee regularly works in a typical two-week period.
What about if the employee works a variable schedule?
For employees who work varying schedules from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked, the employee is entitled to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type. If the employee did not work over such period, the employee is entitled to the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
At what rate of pay must the sick leave be paid?
Sick leave for employees who quarantine or seek diagnosis or medical care must be paid at the employee’s regular rate of pay. Sick leave to care for a family member or a child due to school closure must be paid at two-thirds the employee’s regular rate of pay.
However, the pay is capped at $511 per day and $5,110 in the aggregate for leaves where the employee is in quarantine, self-quarantine, or experiencing symptoms of coronavirus and seeking a medical diagnosis. Paid sick leave is capped at $200 per day and $2,000 in the aggregate if the employee is using leave to care for a family member, provide child care, or experiencing any other substantially similar condition to coronavirus as specified by the Secretary of Health and Human Services.
Can I terminate someone who requests emergency paid sick leave?
There is a “prohibited acts” clause in the statute. Employers may not discharge, discipline, or in any other manner discriminate against any employee who takes leave in accordance with the Emergency Paid Sick Leave Act AND “has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act (including a proceeding that seeks enforcement of the Act), or has testified or is about to testify in any such proceeding.”
Can employers receive tax credits?
Employers who are required to provide emergency FMLA or paid sick leave are entitled to receive a refundable tax credit against the employer portion of Social Security taxes. In each calendar quarter, employers may receive a refundable tax credit equal to 100% of the qualified leave wages they are required to pay. Tax credits are capped at the same amounts as emergency FMLA leave and paid sick leave.
What should employers do next?
Ensure that managers and HR are aware of how to handle emergency FMLA and paid- sick leave requests.
Make sure to clearly document the reason for leave but remember that the employer may not seek physician documentation for emergency-paid sick leave.
Remember that privacy laws still apply with respect to communicating the reasons for leaves.
The landscape is changing by the hour so check for the most recent updates. For answers to other Frequently Asked Questions related to Covid-19, please see Orrick’s COVID-19 Resource Center.