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Revised April 1, 2020

COVID-19: Families First Coronavirus Response Act

 

Shar Bahmani

 

Joe Keene

 
   

Federal paid sick leave and reduced-pay FMLA effective April 1, 2020.

The federal government recently enacted the Families First Coronavirus Response Act (FFCRA), which went into effect April 1, 2020[1]. The FFCRA notably contains (1) federal paid sick leave and (2) reduced-pay, job-protected FMLA-expansion leave.

The good news for employers is that they may be eligible to receive a dollar-for-dollar tax credit at the end of the year against social security/payroll taxes paid or a refund if their taxes-paid amount is less than the amount of employee benefits paid pursuant to the FFCRA.

Paid Sick Leave Pursuant to the FFCRA

The "nuts and bolts" of the federal paid sick leave component of the FFCRA are as follows:

  • Covered Employers: Covered employers include employers with 500 or fewer employees.

  • Duration of Leave: Full-time employees may receive up to 80 hours of pay, while part-time employees may receive the equivalent of the average number of hours they work in two weeks.

  • Permissible Use: The FFCRA provides the following six reasons for permissible use:

1. Employee is subjected to a federal, state or local quarantine due to COVID-19.

2. Employee has been advised by a health care provider to self-quarantine.

3. Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis.

4. Employee is caring for an individual[2] because of #1 or #2 above.

5. Employee must care for a child whose school or care provider is closed due to COVID.

6. Employee is experiencing a similar condition as specified by Health and Human Services, DOL or Treasury.

  • Maximum Payment Per Employee: The FFCRA establishes daily and aggregate caps per employee. Leave taken pursuant to reasons numbered 4-6 above are paid at a reduced rate of two-thirds the employee's regular rate of pay.

FMLA Expansion

Employers should also be mindful of the FMLA-expansion component of the FFCRA. This part of the new law amends the FMLA to provide protections to any employee that has been employed with the employer for 30 days. This FMLA-expansion component is only available to an employee who is unable to work due to a need to care for the employee's children whose schools have closed due to COVID-19 and who do not have other childcare options.

The first two weeks of the leave are unpaid (though they may be compensable under the paid sick leave component above), and the remaining ten weeks are paid at two-thirds of the employee's regular wages up to a cap of $200/day and $10,000 in the aggregate.

Required Notice to Employees

Employers should begin taking steps towards fulfilling the notice obligations expressly set forth in the FFCRA as follows:

"Each employer shall post and keep posted in conspicuous places on the premises of the employer where notices to employees to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor ..."

Posting the required notices in a common area, such as a lunch room, will comply with the requirements of FFCRA. If you have a mobile workforce that does not work at a specific facility, or one that is currently teleworking, the DOL guidance makes clear that "an employer may satisfy this requirement by emailing or direct mailing this notice to the employees, or posting notice on an employee information internal or external website." The key is to show good faith efforts towards compliance. We do not recommend the use of mail, as it does not provide the same record employers would otherwise benefit from through the use of email or by posting on their web page.

Here is the model notice provided by the Department of Labor applicable to private employers:

Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave Under the Families First Coronavirus Response Act (FFCRA)

Employers should act now before the FFCRA becomes effective. We encourage employers to reach out to their local counsel for guidance on drafting appropriate policies and developing game plans to comply with the FFCRA's mandate.

 

[1] The express language of the FFCRA provides that the effective date of the FFCRA is 15 days from signature by the President. This would have made the FFCRA effective April 2. However, guidance from the DOL states the FFCRA is effective as of April 1. Therefore, it's safest to assume the FFCRA is effective April 1.

[2] This is currently broadly written.