Coronavirus and Employment Law, Part 2: New Legislation
In our previous blog, we addressed the employment law implications of the coronavirus pandemic under existing employment laws. Congress has now passed new legislation, titled the “Family First Coronavirus Response Act” (FFCRA), which creates new rights and obligations for employees and employers.
The provisions of this new law take effect on April 3, 2020 (15 days from enactment), and expire on December 31, 2020.
Emergency Family and Medical Leave
This portion of the FFCRA temporarily expands the Family and Medical Leave Act (FMLA), as follows:
Employee Eligibility: Any employee who has been employed for at least thirty (30) calendar days may seek Emergency FMLA leave.
Employer Coverage: Employers with fewer than five hundred (500) employees must provide Emergency FMLA leave.
Qualifying Circumstance: The Emergency FMLA provisions apply to employees who are unable to work (or telework) because they must care for a minor child because the child’s school or care facility has been closed, or if their child care provider is unavailable, due to a “public health emergency” (currently in effect due to the coronavirus).
Leave Entitlement: Eligible employees may take leave for up to twelve (12) weeks for a qualifying circumstance.
Paid Leave Requirement: The first ten (10) days of Emergency FMLA is unpaid. During that time, employees may elect, but may not be required, to utilize any accrued paid time off. During the remainder of the Emergency FMLA, employees must be paid two-thirds of their normal pay (i.e. regular working hours x 2/3 regular rate of pay, or 2/3 weekly salary), up to $200 per day and a maximum aggregate total of $10,000.
Job Restoration: The FMLA’s requirement of job restoration to employees returning from leave will not apply to employers who employ fewer than twenty five (25) employees if the job previously held by the employee no longer exists due to the public health emergency, and the employer is not able through reasonable efforts to provide an equivalent position.
Enforcement: As this portion of the FFCRA amends the FMLA, it is subject to the FMLA’s enforcement provisions, including civil actions for denial of rights and retaliation.
Paid Sick Time Requirement (Emergency Paid Sick Leave Act)
The Emergency Paid Sick Act (EPSA) portion of the new law creates new requirements for employers during the effective period of the FFCRA (through the end of 2020).
Coverage: The EPSA requirements apply to employees (regardless of how long they have been employed) working for private employers engaged in commerce with fewer than five hundred (500) employees, as well as public employers.
Qualifying Circumstances: Employees will be eligible for paid sick time under the following circumstances relating to coronavirus:
⦁ They are subject to a Federal, State or local quarantine or isolation order;
⦁ They have been advised by a health care provider to self-quarantine;
⦁ They have experienced symptoms and are seeking a medical diagnosis;
⦁ They are caring for an individual subject to a quarantine or isolation order, or who has been placed under quarantine by a health care provider;
⦁ They are caring for a child due to a school or care center closure, or if their child care provider becomes unavailable; or
⦁ They are “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.”
Exclusions: Employees of health care providers and emergency responders may be excluded from the EPSA’s requirements.
Paid Sick Time Entitlement: Under the EPSA, full time employees are entitled to eighty (80) hours of pay. Part time employees are entitled to the equivalent of two-weeks of their average weekly earnings. The maximum amount due to any employee is up to $511 per day /$5,110 total for self-care (bullets 1 through 3 above) or $200 per day / $2,000 total for other qualifying circumstances (bullets 4-6 above). Employees may use their accrued paid time off before utilizing the mandatory paid sick leave, but may not be required to do so.
Enforcement: Employers violating the EPSA may be subject to liability under the minimum wage and retaliation provisions of the Fair Labor Standards Act (FLSA).
Employers who provide paid family, medical or sick leave under the FFCRA may be eligible for tax credits to offset the cost of compliance.
As the federal government continues to address this crisis, more legislation may be enacted. Please stay tuned here for more updates and, as always, stay safe and stay healthy!