FAMILIES FIRST CORONAVIRUS RESPONSE ACT BECOMES LAW
Last night, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”). Division C of the FFCRA contains the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion Act”). Division E contains the Emergency Paid Sick Leave Act (“Emergency PSL Act”). These measures require private employers having fewer than 500 employees and public employers to provide certain employees with up to 80 hours of paid sick leave, and up to 12 weeks of job-protected leave (10 of which must be paid) for certain employees who experience “qualifying needs” for leave.
1. Emergency FMLA Expansion Act
The Emergency FMLA Expansion Act applies to private employers having fewer than 500 employees and public employers. It requires such employers to provide “eligible employees” up to 12 weeks of job-protected leave for a “qualifying need related to a public health emergency.” An “eligible employee” is one who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested. A “qualifying need related to a public health emergency” means the employee is unable to work (or telework) due to a need for leave to care for his or her son or daughter under 18 years of age if the school of place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
The Emergency FMLA Expansion Act permits employers to require that the first 10 days of leave under the Emergency FMLA Expansion Act be unpaid. Subject to certain caps, after the first 10 days, an employer must pay the employee at a rate of two-thirds of the employee’s regular rate of pay for the number of hours the employee would have been required to work for the remainder of the employee’s leave entitlement.
Employers must generally restore employees who take emergency FMLA leave to their prior or equivalent positions. There are limited exceptions for businesses that are required to eliminate positions due to operational changes caused by the public health emergency.
2. Emergency Paid Sick Leave Act
In addition to extending job-protected leave rights as explained above, the Emergency PSL Act requires employers having fewer than 500 employees and public employers to provide paid sick leave to employees who are unable to work for certain reasons. A covered employer shall provide to each employee employed by the employer paid sick leave to the extent that the employee is unable to work (or telework) due to the need for leave because of one of the following reasons:
(1) the employee is subject to a local, state, or federal quarantine order related to COVID-19;
(2) a health care provider has advised the employee to self-quarantine due to COVID-19;
(3) the employee is seeking a medical diagnosis and is experiencing COVID-19-related symptoms;
(4) the employee is caring for an individual who is or has been advised to self-quarantine;
(5) the employee is unable to work because he or she needs to care for a child because the child’s school, day care, or child care is closed or unavailable because of COVID-19 concerns; or
(6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
A full-time employee shall be entitled to paid sick leave for 80 hours. Part-time employees shall be entitled to paid sick leave for a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. The amount paid as sick leave pay is also subject to certain caps, and employers are prohibited from retaliating against employees who take paid leave.
Certain tax credits are also provided to mitigate the impact on employers.
The FFCRA – including its Emergency FMLA Act and Emergency PSL Act components – is effective not later than 15 days after the date of the enactment. Therefore, if your business or operation is covered, it is imperative that you take immediate steps to comply. The FFCRA is set to expire December 31, 2020.
If you have questions about how these issues may affect your business, contact Joshua B. Gessling, or the ZSWS lawyer with whom you regularly work.