On March 14, 2020, the United States House of Representatives passed the “Families First
Coronavirus Response Act,” (“FFCRA”), which if signed into law, would impose significant
obligations on private employers with fewer than 500 employees and public agencies of all
sizes. Such employers would be required to provide additional emergency paid sick leave,
as well as provide additional leave through an expansion of the Family and Medical Leave
Act (FMLA) to cover Public Health Emergency Leave. The United States Senate is expected
to take up the legislation this week, and President Trump has indicated an intent to sign the
legislation if it comes before him.
The bill contains eight separate divisions. The key divisions of the FFCRA legislation for
employers are:
- Expanded FMLA leave (Division C). Private employers with fewer than 500 employees
and public agencies of any size,will be required to provide 12 weeks of FMLA leave to
employees requiring leave because of illness or care for family members resulting from
the Coronavirus pandemic. This leave must be provided to all employees who have been
employed for at least 30 days. The first 14 days may be unpaid but thereafter, the leave
must be paid at a rate of two-thirds of the employee’s regular rate of pay. Certain small
businesses with fewer than 50 employees may be eligible, upon enactment of subsequent
regulations, to an exemption from this requirement if the requirement would jeopardize
the viability of the business. - Emergency Paid Sick Leave Act (EPSLA) (Division E). Private employers with fewer
than 500 employees and public agencies of any size must provide 80 hours of paid sick
leave to all full-time employees (or the equivalent of two weeks worth of hours for part-
time employees) who need to miss work because of illness or care for family members
resulting from the Coronavirus pandemic. This mandatory paid leave is in addition to any
other paid leave already provided to such employees. - Tax Credits for Paid Sick and Paid Family and Medical Leave (Division G).
Employers bear the responsibility to pay for such leave, and will be eligible to apply for
and receive certain tax credits for the payments they make to employees for the new
EPSLA and expanded FMLA leave. Employers may receive a tax credit of up to 100% of
the amount of EPSLA leave paid to employees, up to a maximum of $511/day in the case
of the employee’s own illness or $200/day if the employee is receiving leave to care for a
family member. The tax credit is provided against the employer’s portion of Social
Security taxes and can be applied quarterly. For the expanded FMLA leave, employers
can receive a credit (also provided against the employer’s portion of SS Taxes) capped at
$200 per day, $10,000 per year (for all calendar quarters).
The Emergency Paid Leave Act of 2020 (EPLA) requires all employers with fewer than 500
employees to provide two weeks of additional paid sick leave to any employees who must be
absent from work:
- Because the employee was diagnosed with Coronavirus and must self-isolate.
- The employee is seeking medical diagnosis or care because he or she is experiencing
symptoms of the Coronavirus. - To comply with the recommendation or order of a public official or healthcare provider
on the basis that the employee’s physical presence in the office would jeopardize the
health of others because the employee has been exposed to Coronavirus or is exhibiting
its symptoms. - To care for or assist a family member who is self-isolating following diagnosis or
symptoms of Coronavirus or who has been advised or ordered by a public official or
healthcare provider to stay home due to exposure or symptoms of the Coronavirus. - To care for the employee’s child whose school or childcare provider is closed or
unavailable due to the Coronavirus.
Full-time employees will be eligible for up to 80 hours of paid leave; part-time employees will
be eligible to receive pay for whatever number of hours they normally work in a two-week
period. Employees must be paid their regular rate of pay if they require leave because of their
own illness; if the leave is necessitated to care for a child or other family member, the leave can
be paid at two-thirds of the employee’s regular rate of pay.
Notably, EPLA leave is in addition to any other paid time off or sick leave already provided
by an employer, and employers are prohibited from subsequently modifying their paid sick
leave policies on or after the passage of the act.
All employees are eligible for EPSLA leave immediately upon hire, and employers may not
require employees to use other paid leave before using emergency paid leave. Employers are
also prohibited from requiring their employees to find a replacement employee to cover their
shift during a time when the employee is using EPSLA. The definition of family member for
whom an employee may take paid leave is broad, and includes domestic partners and an
individual who is pregnant, a senior citizen, disabled, or has access or function needs and who is
a sibling, next of kin, grandparent or grandchild of the employee. EPSLA leave is not carried
over into the next year and need not be paid out on termination of employment. It also cannot be
used intermittently. The provisions of the EPSLA apply to employees who work under a
multiemployer collective bargaining agreement where the employers pay into a multiemployer
plan and provide eligible employees with leave.
The requirements of the EPSLA will go into effect 15 days after the passage of the legislation
and will expire on December 31, 2020.
The current Family Medical Leave Act (FMLA) provides 12 weeks of unpaid, job-protected
leave (and 26 weeks in the case of certain military exigencies) for eligible employees who suffer
from a serious health condition, are caring for a family member with a serious health condition,
or require leave related to child birth or adoption / fostering of a child.
This legislation expands the existing FMLA to provide paid leave to those requiring time off to
deal with specific situations involving the Coronavirus pandemic.
- The definition of “Employer” includes all entities with fewer than 500 employees (rather
than the current requirement of 50 or more employees). - Employees need only be employed for 30 days, rather than 12 months, to be eligible for
public health emergency FMLA leave. - The definition of family members for whom the leave can be taken is expanded to
include domestic partners and a son, daughter, next of kin, grandparent or grandchild
who is also a pregnant women, senior citizen, disabled, or who has access or functional
needs.
Eligible employees may take public health emergency FMLA leave if they are unable to work
because (1) a government official or healthcare provider has ordered that the employee should
not come into work because he or she has been exposed or is experiencing symptoms of the
coronavirus and the employee is unable to perform his or her work remotely; (2) the employee is
needed to care for a family member whom a government official or healthcare provider has
determined is a danger to the community because he or she has or is experiencing symptoms of
the coronavirus; or (3) the employee must care for a child under the age of 18 due to that child’s
school or child care facility being closed due to the public health emergency.
The first 14 days of the public health emergency FMLA may be unpaid, though the employee
may elect to substitute paid time off, or EPSL as described above. Unlike traditional FMLA, an
employer may not require an employee to substitute paid time off for any of this public health
emergency FMLA. After the first 14 days of leave, the remaining 12 weeks of leave must be
paid at a rate of at least 2/3 of the employee’s usual rate of pay for the number of hours he or she
would usually be scheduled to work.
Employers will be required to reinstate employees who utilize the public health emergency
FMLA in the same manner as traditional FMLA, except that employers with 25 or fewer
employees may not have to reinstate an employee who takes leave pursuant to this section if the
position held by the employee no longer exists due to economic conditions or other changes that
were caused by the public health emergency. In that case, the employer must make reasonable
efforts to restore the employee to an equivalent position with equal pay and benefits, and if not
possible, must contact the employee over the following year if an equivalent position becomes
available.
The legislation also provides that the Department of Labor may issue regulations that
would exclude certain healthcare providers and emergency responders and exempt small
businesses with fewer than 50 employees when the requirements would jeopardize the
viability of the business as a going concern. We will update this document or send out
information if these regulations are issued.
These requirements will take effect 15 days after the legislation is signed and will expire at the
end of 2020.
