We are providing you with the most recent update on the Families First Coronavirus Response Act (FFCRA) as it continues to be reviewed by the Department of Labor (DOL) and how it may apply to you.
One of the primary changes since our last update is that the effective date has now been moved up a day. As a point of clarification, FFCRA goes into effect and will apply from April 1, 2020, through December 31, 2020.
The FFCRA has two primary benefits. First, it requires certain employers to provide their employees with paid sick leave for specified reasons related to COVID-19. Second, it provides expanded family and medical leave for specified reasons related to COVID-19.
Paid Sick Leave
Generally, the FFCRA provides that employers with fewer than 500 employees must provide to all employees:
• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
Qualifying Reasons for Paid Sick Leave Broken Down:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) under circumstances where the employer has work for the employee, due to a need for leave because the employee:
(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
(2) has been advised by a health care provider to self-quarantine related to COVID-19;
(3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
(4) is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
(5) is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
(6) is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Expanded FMLA
Employers with fewer than 500 employees must provide employees that have been employed for at least 30 days up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay because:
• an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
• Note this overlaps with paid sick leave reason (5) above.
Duration of Paid Sick Leave and Expanded FMLA:
For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Calculation of Pay for Paid Sick Leave and Expanded FMLA:
The calculation of what pay an employee is entitled to depends on the reason and need for the leave as set forth below:
• For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
• For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
• For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).
Tax Credits
Congress proposes to pay for these benefits through a tax credit. Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.
Employer Notice
There are also posting requirements. Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. The notice posters have been created and are available by clicking on this link or pasting the following links into your browser:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Anti-Retaliation
Employers may not discharge, discipline, or otherwise, discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Exemptions
Small businesses with fewer than 50 employees may qualify for an exemption from that part of the FFCRA that requires covered employers to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
We understand this is a lot of information to take in and we are working hard to ensure that you receive the most recent and up to date information. As always, we are here to assist and guide you through this.
With specific questions, connect with one of our employment attorneys by calling us at 320-200-4928. You can also contact us online.
Established more than 100 years ago, Quinlivan & Hughes ranks among the oldest and largest law practices in Central Minnesota. The full-service law firm has growing legal teams in the areas of employment law, business law, government law, insurance defense, trust and estate planning, and general litigation. Learn more at Quinlivan.com.
