By Geoffrey A. Lindley – Rainey, Kizer, Reviere & Bell, PLC
On March 18, 2020, the President signed the Families First Coronavirus Response Act (FFCRA) into law requiring employers to provide paid sick leave and paid leave under the Family and Medical Leave Act (FMLA) to employees under certain conditions. On March 24, 2020, the United States Department of Labor (DOL) issued the first round of guidance clarifying that the FFCRA’s effective date is April 1, 2020. The paid sick and FMLA leave requirements will expire December 31, 2020. The DOL’s guidance, fact sheets, and a question and answer sheet are located at the DOL’s website (www.dol.gov). The FFCRA is applicable to private employers with fewer than 500 employees and public employers.
Paid Sick Leave
The FFCRA paid sick leave requirement is applicable to all employees who are unable to work in the traditional sense or work remotely because of a need for leave under the following circumstances:
- the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;
- the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19;
- the employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
- the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID–19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
A full-time employee is eligible for up to 80 hours of paid sick leave, and a part-time employee is eligible for paid sick leave for the number of hours that the employee works on average over a two-week period. For leave related to reasons (1), (2), and (3) above, an employee is paid the sick leave at the employee’s regular rate of pay up to a cap of $511/day with a maximum total payment of $5,110. For leave related to reasons (4), (5), and (6), an employee is paid the sick leave at 2/3 of an employee’s pay up to a cap of $200/day with a maximum total payment of $2,000.
Expanded FMLA Leave
Since the FMLA’s inception, the definition of a covered employer has included public employers, regardless of a public employer’s number of employees. However, the FMLA has always included in the definition of covered employee the requirement that a covered employee work for a covered employer at a location where the employer has 50 or more employees within a 75 mile radius. Therefore, while smaller public employers with less than 50 employees have always been covered employers, they have never had covered employees, making the FMLA inapplicable to them. However, the FFCRA has altered this with regard to the new expanded FMLA leave by changing the definition of employee for this new expanded leave only to exclude the requirement that a covered employee work for a covered employer at a location where the employer has 50 or more employees within a 75 mile radius. Thus, this expanded FMLA leave is applicable to public employers regardless of the number of employees in their workforce.
Regarding new FMLA benefits, the FFCRA expands FMLA coverage by adding a category of paid leave to the FMLA. All other categories of FMLA leave have always been and continue to be unpaid. The paid FMLA leave applies to all employees who have been employed by the employer for at least 30 calendar days and are unable to work in the traditional sense or remotely because of an employee’s need for leave to care for the employee’s son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable because of a public health emergency. A public health emergency is defined as an emergency with respect to COVID–19 declared by a Federal, State, or local authority.
If an employee qualifies for this expanded FMLA leave, the first 10 days of leave is unpaid. For the remainder of the employee’s FMLA leave under the FFCRA, the employer must pay the employee 2/3 of the employee’s regular pay based on the employee’s average hours worked up to a cap of $200/day with a maximum total payment of $10,000. The FMLA generally allows employees up to 12 weeks of leave. Therefore, unless an employee that qualifies for this paid FMLA leave has used some of the employee’s 12-week allotment for other FMLA-qualifying reasons, the employee could take up to 12 weeks of leave under the FFCRA with the first two weeks unpaid and the remaining 10 weeks paid subject to the caps.
However, as the trigger for the expanded FMLA leave is essentially the same as reason (5) for the paid sick leave discussed above, an employee can draw the full 12 weeks at 2/3 of the employee’s regular pay with the first two weeks categorized as paid sick leave and the remaining 10 weeks as paid FMLA leave subject to the caps. Additionally, the job restoration requirements of the FMLA generally apply to this expanded leave with some relief from those requirements for employers with fewer than 25 employees if certain conditions are met.
Exclusions and Exemptions
An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the paid sick leave and FMLA leave requirements of the FFCRA. Additionally, employers with fewer than 50 employees may seek an exemption from the FFCRA’s paid sick leave and FMLA leave requirements if providing such leave would jeopardize the viability of the business as a going concern. The DOL has not yet addressed how a small employer, public or private, can claim this exemption but has advised that employers document why offering such paid leave will jeopardize their business. The DOL has further stated that it will outline the criteria for this small business exemption in more detail in forthcoming regulations.
The FFCRA provides for refundable tax credits against payroll taxes for employers required to provide paid sick leave and paid FMLA leave under this Act at an amount equal to 100% of the qualified sick leave and 100% of the qualified family leave wages.
Public Employer Considerations
The FFCRA has dramatically altered federal law with regard to paid leave, at least through the end of 2020. Therefore, public employers should immediately consider the following.
- Employers must provide notice of the FFCRA’s paid leave entitlements to their employees. The forms on the DOL’s website noted above are a good place to start.
- Employers should set processes for tracking the paid sick leave and FMLA leave taken by employees in order prove compliance with the FFCRA and enable employers to claim the federal tax credit.
- Public employers with fewer than 50 employees should begin analyzing whether they need to claim the small business exemption and, if so, document why, so that they are ready to claim the exemption when the DOL provides more information on how to do so.
- Public employers that employee health care providers and emergency responders should determine whether they need to exclude such employees from the FFCRA’s paid sick and FMLA requirements, and, if so, the justification for and the criteria for doing so. Excluding some health care provider and emergency responder employees and not others without documented legitimate, nondiscriminatory business reasons for doing so could give rise to discrimination claims.