An Employer's Guide to Implementing the Families First Coronavirus Response Act
[UPDATE April 1, 2020] The U.S. Department of Labor (DOL) issued a Final Rule on Paid Leave Under the Families First Coronavirus Response Act (FFCRA). The Rule is effective from April 1, 2020 to December 31, 2020. The Rule provides instructions and directions on aspects of the FFCRA that were previously unclear, including but not limited to, the administration of FFCRA paid leave, definitions for the FFCRA’s terms, notice and documentation required to support FFCRA paid leave, and recordkeeping. The U.S. DOL has continued to update its FFCRA Questions and Answers page (as of today, there are 79 Q&As). Additional updates are expected to be posted by the U.S. DOL later today, including a recorded webinar on the FFCRA. All covered employers under the FFCRA must now have posted the applicable FFCRA poster in their workplace, or if employees are teleworking, by emailing or mailing the poster directly to employees or posting the notice on their internal or external website.
On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (FFCRA). This alert answers important questions about the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the FFCRA. The benefits set forth in the EPSLA and EFMLEA and notice of these benefits must be provided to employees in addition to any benefits required under state law and existing employer policies. This guidance is provided and has been updated as of March 26, 2020.
1. Who is a covered employer under the EPSLA and EFMLEA?
The EPSLA and EFMLEA apply to a private employer if it has fewer than 500 employees. Certain provisions of the FFCRA (the requirement to provide leave due to school closings or child care unavailability) may not apply to employers with fewer than 50 employees that qualify for exemption where leave requirements would jeopardize the viability of the business as a going concern. Certain public employers are also covered. Federal employees are eligible for paid sick leave under EPSLA, but only some federal employees are eligible for leave under EFMLEA.
2. When do the EPSLA and EFMLEA take effect?
The FFCRA will take effect on April 1, 2020. It is not clear that an employer will get credit for compliance with the FFCRA if the employer provides the benefits required under the FFCRA before April 1, 2020. The EPSLA and EFMLEA will expire on December 31, 2020. There are also bills pending in many state legislatures that include additional protections for employees.
The U.S. DOL is observing a temporary non-enforcement period and has announced it will not bring enforcement actions against any public or private employer for violation of the FFCRA before April 17, 2020.
3. What are an employer’s notice requirements under the FFCRA?
Employers will be required to provide notice to employees of the Emergency Paid Sick Leave Act. The US DOL’s model notice for federal and non-federal employers is available on the DOL website. Employers will need to post the notice on or before April 1, 2020, when the FFCRA takes effect. If employees are working remotely, the employer should email the poster to employees, post it on the employer’s intranet, if available, and post the notice in all physical facilities.
4. What benefits do covered employers have to provide under the Emergency Paid Sick Leave Act (EPSLA)?
The EPSLA allows an eligible employee to take paid sick leave if the employee is unable to work or telework because the employee is:
- subject to a federal, state or local quarantine or isolation order related to COVID-19;
- advised by a health care provider to self-quarantine due to COVID-19 concerns;
- experiencing COVID-19 symptoms and seeking medical diagnosis;
- caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
- 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.
Employers that are covered under the FFCRA must provide full-time employees with 80 hours of paid sick leave at their regular rate for leave taken for reasons 1-3 above or two-thirds of their regular rate for qualifying reasons 4-6 above. Under the EPSLA, the total maximum number of paid sick leave hours an employer must provide is 80. Employees are eligible for leave under the EPSLA regardless of the duration of their employment.
Under the EPSLA, paid sick leave wages are limited to $511 per day up to $5,110 total per employee for personal use (reasons 1-3 above) and $200 per day or up to $2,000 total to care for others (reasons 4-6 above).
Part-time employees must be provided paid sick time based on the average number of hours worked for the six months prior to taking paid sick leave. If the employee has worked less than six months, they are entitled to the average number of hours they would work over a two-week pay period.
The EFMLA requires employers to pay employees for hours employees would normally have been scheduled to work even if that is more than 40 hours in a week. In other words, if an employee were scheduled to work 50 hours a week, they may take 50 hours of paid sick leave in the first week of leave, but could only take 30 hours in the second week of leave. Pay under EPSLA or EFMLA does not include an overtime premium.
Employers are prohibited from requiring their employees to use other paid leave already provided before an employee uses the EPSLA leave.
EPSLA does not allow for leave to carry over the following year.
5. Are any exemptions or exceptions available under the EPSLA?
Yes. The Secretary of Labor has the authority to issue regulations to exclude certain health care providers and emergency responders from the definition of employee. Until that emergency guidance and rulemaking is issued by the US DOL, covered employers would need to provide health care providers and emergency responders benefits as provided under the EPSLA.
6. What benefits do covered employers have to provide under the Emergency Family and Medical Leave Expansion Act (EFMLEA)?
Employees that have worked for their employer for at least 30 days are eligible to take up to 12 weeks of job-protected leave if they are unable to work or telework due to a need for leave to care for their child under the age of 18 if the child’s school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency.
During the first 10 days of EFMLEA, leave may be unpaid; however, the employee may elect to substitute paid leave like vacation or sick leave to cover some or all of the 10 days. An employee can also utilize EPSLA leave during the 10 day period. After the first 10-day period, employers generally must pay full-time employees two-thirds of their regular rate for the number of hours typically scheduled. The EFMLEA limits pay entitlements to $200 per day or a combined $10,000 per employee.
EFMLEA changes the employer coverage threshold from 50 or more employees to covering all employers with fewer than 500 employees. In addition, the EFMLEA lowers eligibility requirements to allow employees who have worked for the employer for at least 30 days to be eligible for EFMLEA leave.
7. What exemptions or exceptions are available under the EFMLEA?
Under the Emergency Family and Medical Leave Expansion Act, an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the provisions of the EFMLEA. This exclusion does not need to wait for regulations to be issued by the US DOL. It will be available to employers once the law takes effect. For purposes of the EFMLEA, the definition of health care provider is at 29 C.F.R. § 825.125. “Emergency responder” is defined in the FMLA or the FFCRA. We expect it will be in forthcoming regulations.
Also, the Secretary of Labor is authorized to exempt businesses with fewer than 50 employees from the EFMLEA requirements where “the imposition of such requirements would jeopardize the viability of the business as a going concern.” The US DOL will provide emergency guidance and rulemaking to clearly articulate this standard. Until that emergency guidance and rulemaking is issued, all private employers with less than 500 employees should consider themselves a covered employer under EFMLEA.
Employers with fewer than 25 employees are generally excluded from the job restoration requirements if the employee’s position no longer exists following the EFMLEA leave due to an economic downturn or other circumstances caused by a public health emergency during the period of EFMLEA leave. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.
8. What obligations does an employer have under the EPSLA and EFMLEA if they have already temporarily ceased operations?
Under the terms of the FFCRA as it was passed, the additional benefits provided under the EPSLA and EFMLEA are not guaranteed if an employee is already out of work due to business closure. Unless additional laws are passed, an employer is not currently required, under the FFCRA, to pay an employee who is temporarily out of work because the business has closed or ceased certain operations. This may change after regulations are issued or additional laws are passed.
The EPSLA and EFMLEA will be in effect until December 31, 2020. Employees who have returned to work (if they have been temporarily laid off for lack of work), may be eligible for EPSLA and EFMLEA benefits at a later date while the law is in effect.
9. What information has been provided about tax credits available to employers?
Employers will be able to offset payments made under the expanded FMLA provisions and the Emergency Paid Sick Leave Act through offset against their employer portion of Social Security taxes under Section 3111(a) of the Internal Revenue Code, Med icare taxes and federal income taxes. If there are not sufficient payroll taxes to cover the cost of qualified sick and child care paid leave, employers will be able to file a request for an accelerated reimbursement payment from the IRS. The U.S. DOL has issued a release describing how U.S. Department of the Treasury, IRS and the U.S. DOL plan to implement coronavirus-related paid leave for workers and tax credits for small and midsize businesses—further guidance is expected.
10. When should employers expect additional guidance?
Within 15 days after the date of enactment (that is, by April 1, 2020), the Secretary of Labor has been directed to issue guidelines to assist employers in calculating the amount of paid sick time.
Please keep in mind that this situation is rapidly evolving, and this alert is drafted to provide guidance as of March 26, 2020. This alert is intended to provide an overview and is not to be used as legal advice for any particular situation.
