In an effort to minimize the impact of the COVID-19 pandemic on workers in the United States, Congress passed the Families First Coronavirus Recovery Act (FFCRA), that provided additional sick leave benefits for employees affected by the virus. The FFCRA consists of two separate pieces of legislation: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Although styled to work together, the two statutes have some differences that employers should understand.
This alert is a summary of some the relevant provisions of the FFCRA. Because of practical constraints, there are many nuances in the FFCRA that are not detailed here. An employer is encouraged to contact legal counsel or the Department of Labor with any questions. Barclay Damon is hosting a two-hour webinar discussing the new regulations on April 15, 2020, from 10:00 a.m. to noon. Click here to register.
The FFCRA (and both the EPSLA and EFMLEA) applies to all private employers with less than 500 employees and to most public employees no matter how many employees the public employer has (many federal employees are not covered). Employees include full- and part-time employees and those employees employed through a leasing company, no matter whose payroll the leased employees may be on. The definition of “Employer” is broader than under the Family Medical Leave Act in that it applies to employers with fewer than 50 employees. There is, however, an exemption for such employers if the employer can demonstrate that providing leave to an employee to take care of a Son or Daughter whose school or place of care is closed or unavailable due to COVID reasons would cause undue financial hardship and threaten the viability of the ongoing business.
The definition of employee is different for the EPSLA and the EFMLEA. Every employee is entitled to Paid Sick Leave under the EPSLA. To be eligible for Emergency and Family Medical Leave under the EFMLEA, however, an employee must have been working for the employer for a minimum of 30 days. Therefore, you could have an employee who is eligible for Paid Sick Leave (PSL) but not for Emergency Family and Medical Leave (EFML).
Specifically exempted from coverage under the FFCRA are health care providers and first responders. Health care providers are broadly defined to include anyone who works for a health care facility, nursing home, hospital, etc. or any employer that supports such a facility. Employees of an employer supporting such a facility must be involved in the activities necessary to provide that support. First responders are defined as “anyone necessary for the provision or transport, care, health care, comfort, and nutrition of such patients, or others needed for the response to COVID-19.” It also includes the employees of any first-responder facility so long as the employee is involved in that support.
Paid Sick Leave
An employee can take PSL for any of five different reasons: (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 from a health care provider, (4) the employee is taking care of an individual who is subject to a quarantine or isolation order or who has been directed to self-quarantine or isolate by a health care professional, or (5) the employee is caring for his or her son or daughter whose school or place of care has been closed for period of time, whether by order of a state or local official or authority or a the decision of the individual school or place of care, or if the child care provider of the son or daughter is unavailable due to reasons related to COVID-19.
There are limitations on the entitlement to PSL. The employee is entitled to PSL only if the employer has work available for the employee that the employee cannot do because of COVID-19 related reasons. If the employer has work for the employee that the employee can do by telework, working from home or some other remote location, the employee is not entitled to PSL. More importantly, if the employer does not otherwise have work available for the employee, the employee is not eligible for PSL. This is true even if the lack of work is due to restrictions placed on the employer related to COVID-19. Thus, if an employer ceases doing business because of lack of demand, the employee is not eligible for PSL. Similarly, if an employer shuts down because of a government order, the employee is not entitled to PSL because the employer does not have work available for the employee. Employees in such situations may be eligible for unemployment.
Full-time employees (those working 40 hours per week) are entitled to 80 hours of PSL over a period of 10 days. Part-time employees’ entitlement is equal to twice the average number of hours those employees have worked per week over the last six months.
An employee receiving PSL is entitled to receive the higher of the employee’s regular rate of pay, the federal minimum wage, or the applicable state minimum wage if the employee is receiving paid sick leave because the employee is subject to a quarantine or isolation order, if the employee has been directed to quarantine or self-isolate by a health care professional, or if the employee is experiencing symptoms of COVID-19 and is seeking a diagnosis from a health care professional. The employee’s regular rate of pay is defined as the employee’s average rate of pay over the previous six months. In no event does the employer have to pay the employee more than $511 per day and $5,110 in the aggregate.
If the employee is taking care of a person who has been directed to self-isolate or quarantine or a son or daughter whose school or child-care provider has closed, the employee is entitled to two-thirds of the amount described in the previous paragraph with a daily maximum of $200 per day and $2,000 maximum in the aggregate.
The only time PSL can be taken on an intermittent basis of less than a day is if the employee is taking care of his or her son or daughter or another person. Once the employee begins taking PSL for one or more of the other reasons, the employee must use the permitted days of leave consecutively until the employee no longer has a qualifying reason to take PSL.
Emergency Family and Medical Leave
In contrast to PSL, an eligible employee is entitled to take EFML only to take care of a son or daughter who whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19-related reasons and there is no other suitable person available to care for the eligible employee’s son or daughter.
An eligible employee is entitled to 12 weeks of EFML. The first two weeks of leave is unpaid. An eligible employee may use his or her benefit under the EPSLA (if eligible) or other available paid leave from the employer for the first two weeks. The leave may be taken on an intermittent basis so long as the employer and eligible employee agree.
The eligible employee is entitled to two-thirds of the greater of his or her regular rate of pay, the federal minimum wage, or the applicable state minimum wage. The maximum benefit is $200 per day with a maximum aggregate of $10,000.
General Considerations
The use of PSL and EFML is counted against an employee’s 12-week FMLA leave limit. An employee is not entitled to more than 80 hours of PSL or 12 weeks of EFML. If an employee changes jobs after utilizing the total amount of those leaves, he or she is not entitled to any additional leave. The employer must maintain an employee’s health care coverage during the leave, but the employee is required to pay his or her normal premium contribution toward the coverage. An employee is entitled to return to his or her position upon return from use of the leave. An employer is not allowed to discharge, discipline, or discriminate against an employee for utilizing leave.
If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.
We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.