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Families First Coronavirus Response Act (“FFCRA”)

On March 18, 2020, President Trump signed the amendments to the Families First Coronavirus Response Act (“FFCRA”), which was passed by Congress with overwhelming bipartisan support. The provisions of the FFCRA go into effect within 15 days of signing and will expire on December 31, 2020, unless further amended.

Below is a summary of the employer obligations pursuant to the FFCRA, which applies to all companies with less than 500 employees.

Emergency Paid Sick Leave

Employers are required to provide a new amount of paid sick leave for employees who are unable to work or telework as a result of a need for leave arising because:

– The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

– The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

– The employee is experiencing symptoms of COVID-19 and seeking a

medical diagnosis;

– The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in

paragraph (2);

– The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions; and

– 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. An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Amount of Paid Sick Leave

Full-time employees are entitled to up to 80 hours of emergency paid sick leave. Part-time employees are entitled to an amount of emergency paid sick leave equivalent to the average number of hours they work over a two-week period. There is no minimum length of service requirement prior to taking this leave.

Amount of Compensation for Paid Sick Leave

For employees taking emergency paid sick leave for any of the first three reasons above (which relate to the employee’s own illness), the employer is required to pay the employee no less than the employee’s “regular rate” of pay (as defined pursuant to the Fair Labor Standards Act (“FLSA”), up to a maximum amount of $511 per day, and $5,110 in the aggregate.

For employees taking emergency paid sick leave for the fourth, fifth and sixth reasons identified above, employers are required to pay the employee no less than two-thirds of the employee’s “regular rate” of pay, up to a maximum of $200 per day, and $2,000 in the aggregate.

Emergency Paid Leave Is In Addition to any Leave Already Offered by Covered Employers

Employers must provide emergency paid sick leave under the FFCRA in addition to any other paid time off the employers already offer to their employees. Employers may not require employees to exhaust any of their other employer-provided leave time before taking emergency paid sick leave time under the FFCRA, nor may employers require employees to find replacement employees during their absence.

Notice Requirements

Employers will be required to post, in conspicuous places, a notice regarding emergency paid sick leave that the Department of Labor (“DOL”) will issue in the near future.

Employer Obligations under Emergency Family and Medical Leave Expansion Act

In addition to the paid sick leave above, the FFCRA also amended the Family and Medical Leave Act (“FMLA”) to include leave for a “qualifying need related to a public health emergency.” Now, eligible employees will be able to take up to 12 weeks of leave when the employee “is unable to work (or telework)” due to a need to care for children (under age 18) because their school or place of care has been closed, or his/her child(ren)’s child care provider is unavailable, due to an emergency with respect to COVID-19 declared by federal, state and/or local government.

Unpaid Leave for 10 Days

Employers may choose not to pay an employee for the first ten (10) days of such leave. Just as the previous FMLA provisions, employees may choose to substitute any accrued vacation or sick time they may have during the unpaid portion of their leave. But employers may not require employees to use such paid time during the emergency leave. However, it seems that an employee could apply the emergency paid sick leave allotment discussed above to cover the first ten days of the FMLA leave.

Paid Leave Beyond 10 Days

If an employee continues to have a need for leave beyond the first ten-day period, however, employers are required to compensate the employee for the duration of the qualifying leave. This paid leave must consist of an amount of pay that is not less than two-thirds of an employee’s “regular rate” of pay for “the number of hours the employee would otherwise be normally scheduled to work,” up to a maximum amount of $200 per day, and $10,000 in total. These rules are slightly modified if the employee’s schedule varies weekly.

Employee Eligibility

A much larger number of employees will be eligible for this leave than are currently eligible for the other types of leave provided by the FMLA. In particular, employees are eligible if they have been employed by their current employer for a minimum of thirty (30) calendar days, rather than the FMLA’s regular requirement of 1250 hours worked in a 12 month period.

Employers That Must Comply

The public health emergency leave applies to all employers with fewer than 500 employees. Previously, employers with fewer than fifty employees did not need to comply with the leave provisions of the FMLA. However, they will need to become familiar with, and correctly administer, this new public health emergency leave.

The U.S. Department of Labor does have the authority to issue regulations “for good cause” to: 1) prohibit “certain health care providers and emergency responders” from taking public health emergency leave; and/or 2) “exempt small businesses with fewer than 50 employees… when the imposition of [the new leave] requirements would jeopardize the viability of the business as a going concern.” As of now, the Department of Labor has not issued any regulations.

Job Reinstatement

As with any leave under the FMLA, employers must reinstate employees who take public health emergency leave to their previous position or an equivalent position upon their return to work. However, for employers with less than 25 employees the reinstatement requirement is eased in specific circumstances. Employers with less than 25 employees are not required to reinstate an employee to his or her job following public health emergency leave if each of the following conditions are met: 1) the “position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer (i) that affect employment, and (ii) are caused by a public health emergency during the period of leave”; 2) the employer makes “reasonable efforts” to restore the employee to an equivalent position; and 3) if the employer’s “reasonable efforts” fail, the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during the following year.

If you have any questions, please feel free to contact the attorneys at Shanberg Stafford & Bartz LLP.