Paid Sick Leave and Expanded Family Medical Leave for Coronavirus COVID-19 under the “Families First Coronavirus Response Act”
by David G. Ritchie on March 25, 2020
Congress Approved H.R. 6201, the “Families First Coronavirus Response Act” (FFCRA) with new requirements for employers with fewer than 500 employees and public employers. The text of the law may be found here.
The Act requires certain employers to provide FFCRA paid sick leave, and also to extend family medical leave act benefits, in certain circumstances; and employers are able to retain an amount equal to the qualifying sick leave and child-care leave that they pay from payroll taxes. The Department of Labor Wage and Hour Division is responsible for the administration and enforcement of the Act.
Sections 5101 through 5111 are known as the “Emergency Paid Sick Leave Act”. Employers must provide Full-time employees with 80 hours of paid sick leave, (part-time employees are provided with the number of hours they work on average over a 2-week period), to employees who are unable to work or telework and therefore require leave because they are affected by: a) a COVID-19 Federal, State or Local government quarantine or isolation order; or b) have been advised by a medical provider to self-quarantine due to COVID-19 concerns; or c) they are seeking a diagnosis and have symptoms of COVID-19; or d) they are caring for someone covered by a) or b), above; or e) they are caring for a child who cannot attend school due to a COVID-19 closure.
Where sick leave is used for an employee’s own illness or quarantine leave is at the employee’s regular rate of pay up to a maximum of $511 per day and $5110 in the aggregate (per employee). Where sick leave is to care for another individual subject to quarantine or because school or child care is unavailable for reasons related to COVID-19 leave is at 2/3 of the employee’s regular rate of pay up to a maximum of $200 per day ($2000 in total per employee). Employers cannot alter the benefits employees are entitled to under existing policies or employment agreements – this leave is in addition to any existing benefit that employees have. Employees may use the leave under this Act first, before any other leave and employers may not require the use of other leave beforehand.
Employees using sick leave under the Act cannot be required to find a replacement worker to cover their absence. Employers are required to post a notice containing a description of these requirements, the notice will be prepared or approved by the Secretary of Labor and available from the Department of Labor no later than March 25, 2020. Leave provided for under this law is not portable, does not carry over from one year to the next and expires at the end of the year if unused, when the Act expires on December 31, 2020. Small businesses with fewer than 50 employees are exempt if imposing the obligation for paid sick leave would jeopardize the business as an ongoing concern. Employers may also exempt employees who are health care providers and emergency responders by opting out of including them in the definition of “employees” under the Act.
Up to an additional 10 weeks of FFCRA expanded family and medical leave at 2/3 the regular rate of pay is provided for employees who have worked for the employer for at least 30 days and is unable to work due to a need to care for a child where school or child care is unavailable or if they are otherwise unavailable due to reasons related to COVID-19. This expansion of family and medical leave (FFCRA Expanded Leave), however, does not amend the Family Medical Leave Act (FMLA Leave). FMLA requirements still apply to employers the same as it always has, even if they are not covered by FFCRA Expanded Leave Requirements. FFCRA Expanded Leave applies to certain public employers (Federal Government Employees are included in the paid sick leave portion of the FFCRA but excluded from the expanded family and medical leave portions.)
Employers may not discharge, discipline or otherwise discriminate against any employee who takes expanded family medical leave under the FFCRA or who files a complaint or claim relating to the FFCRA. Violations of the paid sick leave portions of the FFCRA are subject to penalties listed in Section 16 and 17 of the Fair Labor Standards Act, and a Failure to provide expanded family and medical leave carry remedies contained in the enforcement provisions of the Family Medical Leave Act. The FFCRA will not be actively enforced for thirty (30) days after the effective date if employers have acted in a good faith effort to comply and remedy any violations with make-whole remedies to employees as soon as practicable, and where violations were not willful.