Employer Obligations Under the Families First Coronavirus Response Act

“The employment law provisions of the new federal Families First Coronavirus Response Act become effective April 1, 2020, leaving business owners and operators with many questions about what their obligations are under the Act and how to comply with them. At the same time, apart from this new law employers continue to face new issues relative to their workforce as employees ask questions about their rights and state and local authorities adopt rules that limit in varying degrees the freedom of people to interact with others and leave their homes generally, including to report to work.

The FFCRA is a long bill with many provisions, and there are already a number of published analyses of the law’s requirements. The purpose of this summary is not to delve into every aspect of the law and all of the exceptions, but to provide business owners and HR managers a concise bullet-point summary of the key provisions that most small and mid-sized employers need to understand in order to assess, as a threshold matter, how the law might apply to them and what they need to be preparing for as the effective date draws near. Specific applications may vary, but following are some of the key provisions of this new law.

There are two main parts of the law that apply to employers: (1) Emergency Paid Sick Leave (EPSL) and (2) Emergency Expanded Family and Medical Leave (EEFML).

Emergency Paid Sick Leave
• Applies to any private employer that employs less than 500 people and all public employers
• Requires that employers provide up to two weeks of paid sick leave (EPSL) for specific coronavirus-related reasons, listed below
o Full-time employees receive full pay for leave taken for a qualifying reason, except that amount is reduced by 1/3 for leave taken to care for an individual subject to a government or health-care-provider ordered quarantine, or for a son or daughter whose school is closed
o Part-time and variable-hour employees receive full or reduced pay (as described above) based on what they earn over an average two-week period
• Qualifying reasons for EPSL are:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19;
(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis;
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter
• The amounts to be paid are subject to caps: $511/day or $5,110 total for leave taken for reasons 1 -3 above and $200/day or $2,000 total for leave taken for reasons 4-5 above
• To offset this expense, the law provides tax credits to the employer (businesses should consult their CPA about this)
• Health care providers and emergency responders may be exempted (rendered ineligible by their employers)
• Covered employers are required to post a notice of employee EPSL rights (the DOL will provide a form no later than March 25)

Emergency Expanded Family and Medical Leave

• Applies to any public or private employer that employs less than 500 people
• Requires that covered employers provide up to ten (10) additional weeks, beyond the two weeks of EPSL described above, of paid Family and Medical Leave to eligible employees
• EEFML is available for only one reason: when the employee is unable to work (or telework) due to the need to care for the employee’s son or daughter under 18 years of age because the child’s school or place of care is closed due to a public health emergency
• Employees of covered employers are eligible if they have been employed for at least 30 days
• The rate of pay must be at least 2/3 of the employee’s regular rate of pay, subject to a maximum of $200/day and $10,000 in the aggregate
• Covered employers may exclude health care providers and emergency responders (I.e. not provide this leave to employees in those groups)
• Employees who take this leave generally have the right to be reinstated to their same or a similar position, subject to the small-employer exception below
• Small employer considerations:
o The DOL may exempt small businesses with fewer than 50 employees where imposition of these requirements would jeopardize the viability of the business as a going concern (guidance expected any day)
o Employers who are not otherwise covered by the FMLA (I.e. have less than 50 employees) cannot be sued by their employees for violation of these provisions, but remain subject to potential DOL enforcement
o Employers with fewer than 25 employees may not be required to reinstate employees who take this leave when it concludes if the position no longer exists due to economic or operational changes during the leave caused by the coronavirus pandemic, but the employer should make reasonable efforts to reinstate and must continue to do so for a period of 12 months after the leave concludes.

The FFCRA contains a number of other provisions on calculating pay, joint employment situations, tax credit allowances, and the relationship of EPSL and emergency FMLA to other types of leave that the employer may have already been providing (sick time, PTO, etc.), but in an effort to keep this in the “summary” category, those provisions are not described here. Each business is different and employers should seek legal advice about how this new law may apply in each unique situation.”