On March 18, 2020, the President signed the Families First Coronavirus Response Act (FFCRA) into law, to provide relief to employees adversely affected by the 2019 novel coronavirus (COVID 19) pandemic. The FFCRA primarily addresses the issues of paid sick leave and additional leave under the federal Family and Medical Leave Act (FMLA).
We do not know the exact date that the FFCRA will be in effect. The legislation states that it will take effect not later than 15 days after its March 18, 2020 enactment (April 2, 2020), and will run through December 31, 2020. It applies to private employers with fewer than 500 employees and certain public employers. The 500-employee figure is computed based on the aggregate locations of an employer company.
The FFCRA provides for potential Department of Labor regulations which might exempt employers with fewer than 50 employees from its requirements “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” It is too uncertain at this time to determine whether or when the DOL would issue such regulations, or what its interpretation of the exemption would entail.
The following are highlights of the FFCRA.
Expanded FMLA Leave Provisions
The FMLA requires employers with 50 or more employees to provide certain employees with up to 12 weeks of job protected leave for certain specified family and medical reasons.
The FFCRA provides additional relief for certain employees. The FFCRA applies to employees who have:
• been employed for 30 days;
• are unable to work (or telework) due to a need for leave to care for the employee’s son or daughter under 18 years old; and
• the elementary or secondary school or place of care for such child has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
If these requirements are met, an employer must provide such employees with 12 additional weeks of FMLA leave (i.e. in addition to any FMLA leave to which the employees are otherwise entitled). Of these 12 weeks, the first ten days may be unpaid, and the remaining leave must be paid at a rate of not less than 2/3 of the subject employee’s normal rate of pay, capped at $200 per day and $10,000 in the aggregate.
The enacted legislation is narrower than that originally proposed by the House, which would have also applied to individuals personally affected by or caring for a family member affected by COVID-19. Since the rejected proposal received much publicity before the legislation passed in its final form, employers should ensure they comply with the legislation as finally enacted.
Employers will receive tax credits for Expanded FMLA Leave payments made under the FFCRA.
Emergency Paid Sick Leave
The FFCRA’s paid sick time provisions apply to an employee who is:
• subject to a quarantine order;
• advised by a healthcare provider to self-quarantine;
• experiencing symptoms of COVID-19 and is seeking a diagnosis of those symptoms;
• caring for an individual who is subject to a quarantine order or has been ordered to self-quarantine;
• caring for a son or daughter of the employee 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; or
• experiencing a 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.
For an employee meeting one or more of these requirements, the employer is required to provide up to two weeks (80 hours) of paid sick leave to the employee. If the employee works part-time, the total leave required is the number of hours that such employee works, on average, over a 2 week period.
An employee taking leave must provide “notice of leave as is practicable.”
If the employee is taking leave due to his or her own symptoms or exposure (i.e. one of the first three above bullet-point requirements above), the employee must be paid his or her regular rate of pay, with paid sick time capped at $511 per day and $5,110 in the aggregate.
If the employee is using paid sick leave to care for an individual affected by COVID-19 or the employee’s child due to school closing or the unavailability of child care (i.e. one of the last three above bullet points), the employee must be paid 2/3 his or her regular rate of pay, capped at $200 per day and $2,000 in the aggregate.
The entire 80 hours of paid sick leave is available immediately, without any accrual rate or period. No leave can be carried over to another period or year.
Emergency paid sick leave under the FFCRA is in addition to, not instead of, any other paid leave provided by an employer. An employer cannot require an employee to use other paid leave provided by the employer before using the FFCRA’s emergency paid sick leave.
Employers will receive tax credits for payments made under the FFCRA.
COVID-19 Testing Coverage Under Employer-Sponsored Health Care Plans.
Employer-sponsored health plans must provide coverage, without co-pays or other cost sharing, for testing for SARS CoV-2 or the virus that causes COVID-19. This includes the administration of the test and services provided in conjunction with the testing.
FOX, O’NEILL & SHANNON, S.C.’S CORONAVIRUS UPDATE—WORKPLACE ISSUES discusses recent DOL guidance regarding unemployment insurance for employees affected by COVID-19. In conjunction with those guidelines, the FFCRA provides states the flexibility to modify their unemployment compensation laws and policies “with respect to work search, waiting week, good cause, or employer experience rating on an emergency temporary basis as needed to respond to the spread of COVID-19.” It also grants additional federal funding to states to cover costs related to the processing and paying of unemployment insurance benefits related to COVID 19.
Except as provided in the legislation, the FFCRA does not alter employers’ obligations under the FMLA or any other law. Employers should ensure that they continue to comply with all federal and state laws, including the FMLA, the ADA and other anti-discrimination laws, and wage and hour laws. FOS can answer your questions concerning any employment issue, whether related to COVID-19 or otherwise.
The FFCRA is federal legislation under federal law. The legislation does not affect state law, including state Family and Medical Leave Acts. At this time, the Wisconsin legislature has not enacted any companion law to the FFCRA. FOS is monitoring the Wisconsin and federal legislatures regarding their responses to COVID-19 pandemic.
Each day seems to bring more changes and anxieties to our working and personal worlds, and our collective uncertainty is likely to continue for weeks to come. FOS is here for you and your families.
Please contact your FOS attorney for any questions you may have regarding COVID-19 or any legal issue.
FOX, O’NEILL & SHANNON, S.C.