Families First Coronavirus Response Act: Leave Provisions

On March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA). President Trump signed it into law shortly thereafter.  The FFCRA will become effective within 15 days and remains in effect until December 31, 2020.  The FFCRA is intended to assist the country with the COVID-19 pandemic.  This Legal Update will highlight two key provisions addressing employee leaves of absence arising out of or related to the COVID-19 pandemic. 

Amendments to the Family and Medical Leave Act (FMLA)

The FFCRA creates a new category of protected leave under the FMLA, during the period that the FFCRA is in effect, an employee may take FMLA leave “because of a qualifying need related to a public health emergency”.  The term “qualifying need related to a public health emergency” is defined as “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee 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.”

Such public health emergency leave is available to employees who have been employed for at least 30 calendar days by an employer as defined by the FMLA, except that it applies to private sector employers with at least 1, but fewer than 500 employees, and public sector employers, including public school districts, regardless of the number of employees.

The first 10 days of the public health emergency leave may consist of unpaid leave, unless the employee elects to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.

After the first 10 days of the public health emergency leave, the employer must provide additional paid public health emergency leave.  Such leave must be paid at a rate of not less than two-thirds of an employee’s regular rate of pay and based on (a) the number of hours the employee would normally be scheduled to work or (b) the number of hours calculated using the varying scheduled hours formula offered by the FFCRA for employees whose schedules vary from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked.  In such a case, the employer must use the following in place of such number:

• A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
• If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.

Such public health emergency leave shall cease 12 weeks after the date on which the employee’s leave commenced or when the public health emergency concludes, whichever occurs first.

In order to take such leave, the employee must provide the employer with such notice as is practicable.

An employer must restore an employee, who has taken public health emergency leave, to his/her prior position following the leave of absence, unless the employer employs fewer than 25 employees and 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.

If an employer violates the provisions of the public health emergency leave provisions described above, the employer shall face the penalties and enforcement mechanisms set forth in the Family and Medical Leave Act (FMLA).

Emergency Paid Sick Leave

The FFCRA also creates the Emergency Paid Sick Leave Act, which requires employers to provide employees with emergency paid sick leave for the period of time that the employee is unable to work (or telework) because:

(1)  The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

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

(3)  The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4)  The employee is caring for an individual who is subject to an order as described above in Paragraph (1) or has been advised as described above in Paragraph (2).

(5)  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.

(6)  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.

Such emergency paid sick leave is available to employees regardless of how long they have worked for the employer.  Private sector employers must comply with this Act provided that they employ at least 1, but fewer than 500 employees.  Public sector employers must comply with this Act regardless of the number of employees employed by the public entity.

Full-time employees shall be entitled to 80 hours of emergency paid sick leave.  Part-time employees shall be entitled to paid sick leave for the number of hours that the employee works, on average, over a 2-week period.  However, the employee’s emergency paid sick leave shall cease beginning with the employee’s next work shift after the employee returns from leave, provided that it occurs prior to the employee’s exhaustion of the emergency paid sick leave allotment.

For purposes of the emergency paid sick leave referenced above in Paragraphs (1), (2), and (3), the emergency paid sick leave shall be paid at the employee’s regular rate of pay, except that the amount may not exceed $511 per day or $5,110 total.  For purposes of the emergency paid sick leave referenced above in Paragraphs (4), (5), and (6), the emergency paid sick leave shall be paid at 2/3 of the employee’s regular rate of pay, but may not exceed $200 per day or $2,000 total.

An employer may not require an employee to find a replacement for him/her as a condition of providing emergency paid sick leave and an employer may not require an employee to exhaust other paid leave provided by the employer before receiving emergency paid sick leave.  Moreover, an employer is not required to allow an employee to carry over emergency paid sick leave from one year to the next.

The Secretary of Labor will be providing employers with a model notice regarding the Emergency Paid Sick Leave Act, which employers will be required to post in conspicuous places on the premises of the employer where notices to employees are customarily posted.

If an employer violates the provisions of the Emergency Paid Sick Leave Act, the employer may be sanctioned under the penalties and corresponding enforcement mechanisms set forth in the Fair Labor Standards Act (FLSA).

Most private sector employers will be eligible for tax credits related to the paid leave. However, public sector employers, including public school districts, will not be eligible for the tax credit.