March 19, 2020
By Anne Baggott
Federal legislation passed March 18, 2020, called the Families First Coronavirus Response Act (FFCRA), impacts all employers with fewer than 500 employees. The legislation leaves many questions unanswered. The U.S. Department of Labor will be issuing guidance in April 2020.
The FFCRA requires covered employers to provide two forms of emergency or expanded paid leave for employees impacted by the novel coronavirus and its associated disease, COVID-19. The following is a simplified, bullet-point summary.
Emergency Paid Sick Leave
- Available to all employees, regardless of tenure.
- Duration of paid leave
- Full-time: 80 hours
- Part-time: Number of hours the employee averages over 2 weeks
- Leave applies when an employee is unable to work or telework in the following instances:
- For an employee who:
- Is subject to a federal, state or local quarantine or isolation related to the coronavirus.
- Has been advised by a healthcare provider to self-quarantine due to the coronavirus.
- Is experiencing symptoms of the coronavirus and seeking a medical diagnosis.
- To care for a family member:
- When the family member is subject to a government quarantine or isolation related to the coronavirus.
- When the family member has been advised by a healthcare provider to self-quarantine due to the coronavirus.
- To care for the employee’s child:
- Whose school has been closed because of the coronavirus.
- Whose child care provider is unavailable due to the coronavirus.
- Rate of pay – if employee is sick or isolated/unable to work or telework: Greater of regular rate of pay, or state/federal minimum wage, up to $511/day.
- Rate of pay – if employee caring for a family member: 2/3 of the regular rate of pay, or 2/3 of state/federal minimum wage, up to $200/day.
- Emergency paid sick leave for coronavirus must be offered in addition to existing sick leave. Employee can elect to use coronavirus paid leave before other paid leaves.
- For an employee who:
Emergency FMLA Expansion
- Available to all employees with at least 30 days of tenure.
- Duration of paid leave: 12 weeks. First two weeks paid with emergency paid leave (above) or existing sick leave. Next 10 weeks paid as stated below.
- Leave applies when an employee is unable to work or telework in the following instance:
- To care for the employee’s child:
- Whose school has been closed because of the coronavirus.
- Whose child care provider is unavailable due to the coronavirus.
- Rate of pay: 2/3 of the regular rate of pay, or 2/3 of state/federal minimum wage, up to $200/day.
- Emergency FMLA leave for coronavirus must be offered in addition to existing family-related leave. Employee can elect to use expanded FMLA paid leave before other leaves.
- Return to work – if business has 25 or more employees: The employee must be returned to same or equal position.
- Return to work – if business has fewer than 25 employees: No obligation to return to work if the position was eliminated due to coronavirus-related impacts, and the employer makes a reasonable effort to place employee in another position.
- To care for the employee’s child:
Congress is considering other relief for employees during this unprecedented time. Stay tuned. The law also allows employers with fewer than 50 employees to apply for an exemption from this law, if it would impact the viability of the business. However, how to apply for the exemption is unclear.
Tax Credits Available
Refundable tax credits are available to employers to help offset some of the cost of providing the newly required paid leave. At this time, the credits will be available on quarterly payroll tax returns.
Open Questions
The new law leaves several questions open. We expect and hope DOL will address these questions in its forthcoming regulations.
- Is coverage under the FFCRA determined location by location, or by aggregating employees within the entire business? What about single or joint employers or integrated enterprises?
- What kind of documentation is required from a healthcare provider to trigger entitlement to the benefit?
- What must employers of healthcare providers and emergency responders, and employers with fewer than 50 employees, do to opt-out of providing paid leave?
For more information about employment implications of the novel coronavirus, contact Anne Baggott at 816-714-3022 or abaggott@dysarttaylor.com .