Congress passes COVID-19 related leave of absence legislation
The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020.
There are primarily two provisions relevant to workplaces: the Emergency Family and Medical Leave Expansion Act (Emergency FMLA) and the Emergency Paid Sick Leave Act.
The Emergency Family and Medical Leave Expansion Act (Emergency FMLA)
Previously, to be eligible for the Family and Medical Leave Act (FMLA), among other things, an employee must have worked at a location that has 50 employees within a 75-mile radius. This left out a lot of employees from coverage.
This new emergency provision responding to COVID-19 changes the eligibility criteria based on employer size. It applies to employers with fewer than 500 employees, and to employees who have been employed for at least 30 days. This Emergency FMLA expires on Dec. 31, 2020.
The Emergency FMLA Act provides up to 12 weeks of leave off of work because of an emergency due to COVID-19 declared by a federal, state or local authority where an employee is unable to work (or telework) due to a need to care for the employee's son or daughter under 18 years of age if the school or 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 first 10 days of leave are unpaid under the Act, although new Emergency Paid Sick Leave discussed further below might apply. An employee also has the right to use any applicable accrued vacation, personal or sick/medical leave over this period.
If leave for a qualifying need continues beyond 10 days, it must be paid at a rate of at least two-thirds of the employee's regular rate of pay and based on the number of hours the employee normally would have been scheduled to work. For employees with varying work hours, a special formula has been created to determine the appropriate rate.
In all cases, Emergency FMLA leave may be capped at $200 per day and $10,000 in the aggregate. Subject to Treasury Department regulations, all Emergency FMLA Leave wages (up to the capped amounts) may be reimbursed via payroll tax credits.
Employees are required to provide notice of the need for Emergency FMLA as soon as practicable when the need for leave is foreseeable. Generally, employers with 25 or more employees must restore employees to their positions following their return from Emergency FMLA Leave on the same terms as typically mandated by the FMLA. Employers with less than 25 employees also must reinstate employees, unless certain conditions are met. The law allows the U.S. Department of Labor (USDOL) to issue regulations 1) excluding certain healthcare providers and emergency responders from being eligible for emergency FMLA, and 2) to exempt businesses with fewer than 50 employees from having to provide Emergency FMLA if doing so would jeopardize the viability of the business.
Emergency Paid Sick Leave Act
In addition to Emergency FMLA, the FFCRA also provides for paid Emergency Paid Sick Leave in the case of certain absences related to COVID-19. Again, this provision applies to employers with fewer than 500 employees.
The Act requires qualifying private employers to provide paid sick time to employees to the extent that the employee is unable to work (or telework) because:
A. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
B. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
C. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
D. The employee is caring for an individual who is either (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
E. 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 child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
F. 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 Emergency Paid Sick Leave.
Full-time employees are entitled to 80 hours of Emergency Paid Sick Leave, and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. The full allotment of paid sick time provided for by the Act must be available for immediate use by an employee, regardless of how long the employee has been employed by the employer.
Emergency Paid Sick Leave must be paid at the higher of (1) the employee’s regular rate of pay, or the (2) federal or state minimum wage. If time off is taken under categories D, E, and F above, employees must be compensated at two-thirds of their rate. There is a cap on the amount an employer is required to pay to employees receiving Emergency Paid Sick Leave, which differs depending on whether the employee is receiving full or two-thirds wages. There is a cap of $511 per day and an aggregate limit of $5,110 for those receiving full wages (categories A, B, and C above). For categories D, E, and F (where the employee would be paid at a two-thirds rate), there is a $200 cap per day, and $2,000 in the aggregate.
Emergency Paid Sick Leave does not carry over from one year to the next, and any Emergency Paid Sick Leave not used at the time of an employee’s separation of employment does not need to be paid out to the employee.
An employer may not require an employee to use other paid leave provided by the employer before the employee uses Emergency Paid Sick Leave under the Act.
An employer may not require, as a condition of providing paid Emergency Paid Sick Leave under the Act, that the employee search for or find a replacement employee to cover the hours during which the employee is using Emergency Paid Sick Leave.
Employers may require employees to follow reasonable notice procedures to continue to receive Emergency Paid Sick Leave after the first workday (or portion thereof) an employee receives paid sick time.
Employers who fail to provide Emergency Paid Sick Leave or who terminate or discriminate against an employee who takes Emergency Paid Sick Leave or has taken action to enforce his or her rights under the Act will be considered in violation of the Fair Labor Standards Act and subject to the FLSA’s penalties, including payment of back pay, liquidated damages and attorneys’ fees.
Similar to Emergency FMLA, the Emergency Paid Sick Leave requirement expires on December 31, 2020. In addition, subject to the conditions of Treasury Department regulations, all Emergency Paid Sick Leave wages (up to the capped amounts) may be reimbursed via payroll tax credits.
Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and small and medium-sized businesses across Massachusetts, including with respect to COVID-19 and the Coronavirus. Contact Doorways.