Much attention has been given to the CARES (Coronavirus Aid, Relief and Economic Security) Act passed by Congress in March. That is the federal legislation which provided one-time $1,200 payments to individuals, an extra $600 per week in unemployment benefits (which expired at the end of July) and Paycheck Protection loans (PPP) for businesses, convertible to grants under certain conditions. That same month, Congress enacted the Families First Coronavirus Response Act (FFCRA). It contains a lot of important information about employee benefits related to Covid-19 that cannot be denied by your employer.
The FFCRA amends the 1993 Family and Medical Leave Act and provides certain required leave benefits in a law known as the Emergency Family and Medical Leave Expansion Act when a qualifying need of an employee arises related to a public health emergency, namely Covid-19. The FFCRA will remain in effect through the end of December 2020. Here’s the specifics you need to know.
Paid Leave
· An eligible employee for FFCRA benefits must be employed for at least 30 calendar days by the employer from whom leave is requested.
· Companies with fewer than 500 employees are required to provide paid leave benefits. However, the federal Secretary of Labor may exempt small businesses with fewer than 50 employees if the leave benefit requirements would “jeopardize the viability of the business as a going concern” – in other words, the business cannot provide benefits and remain in business.
· A qualifying need related to a public health emergency occurs if the employee is unable to work or telework due to a need to care for a son or daughter less than 18 years old or if the school or place of care (such as a daycare center) has been closed or the childcare provider is not available because of a public health emergency (Covid-19).
· A public health emergency is an emergency related to Covid-19 declared by a federal, state or local authority.
The Benefits:
· The employer is required to provide paid leave to qualifying employees after the employee has first taken 10 days of regular leave, which may be unpaid. An employee may use accrued vacation, personal, medical or sick leave for unpaid leave.
· Employers are required to provide paid leave after an employee uses the first 10 days of regular leave.
· Paid leave must be at least 2/3 of the employee’s regular pay rate based on the numbers of hours the employee would normally be working.
· Paid leave limitation - $200 per day and $10,000 total.
Exceptions and Limitations:
· After leave is completed, the employer is generally required to restore an employee to her or his position or an equivalent position with equivalent pay and benefits with some exceptions if the employer has less than 25 employees and the following conditions are met:
· The employee takes leave because of a qualifying need related to a public health emergency (as noted above).
· The employee’s position when her or his leave began no longer exists because of economic conditions or other changes in the employer’s operating conditions that affect employment and caused by a public health emergency during the leave period.
· The employer makes reasonable efforts to restore the employee to an equivalent position.
· The employer’s reasonable efforts to restore the employee to an equivalent position fail and the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the one-year period beginning the earlier of a) the date that the qualifying need for leave ends; or b) 12 weeks after the employee’s leave began.
· Employers of health care providers and emergency responders may exclude those employees from the paid leave benefit under FFCRA.
Congress also enacted the Emergency Paid Sick Leave Act within the FFCRA.
Paid Sick Leave
· Private employers with less than 500 employees, non-private and public agencies with any number of employees are required to provide paid sick leave if an employee is unable to work or telework due to a need to take leave for any of the following:
· The employee has been ordered by a government agency to quarantine or isolate related to Covid-19.
· The employee has been advised by a health care provider to self-quarantine due to Covid-19.
· The employee is experiencing Covid-19 symptoms and seeking a medical diagnosis.
· The employee is caring for a person who has been ordered by a government agency or advised by a health care provider to quarantine or isolate.
· The employee is caring care for a son or daughter if the school or place of care (such as a daycare center) has been closed or the childcare provider is not available because of Covid-19 precautions.
The Benefits:
· Paid sick leave is 80 hours for full-time employees and for part-time employees, the average number of hours the employee works over a two-week period. There is no carryover to the next year for either full-time or part-time employees.
· The paid sick leave ends when the employee is no longer unable to work or telework because of the reasons above.
· The paid sick leave must be available immediately, regardless of how long the employee has been working for the employer.
· The employer cannot require the employee to first use other paid leave, such as paid vacation.
· Paid sick leave is generally equal to an employee’s regular rate of pay, but not more than $511 per day or a total of $5,110 if used for quarantine or isolation directed by a government agency or advised by a health care provider or if the employee is experiencing Covid-19 symptoms and is seeking a medical diagnosis. The limit is $200 per day and a total of $2,000 if used for caring for a person who has been ordered or advised to quarantine or isolate; caring for a son or daughter if the school or place of care (such as a daycare center) is closed or the childcare provider is not available because of Covid-19 precautions or if the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
· For part-time employees whose schedules vary from week to week, the paid leave would be based on the number of hours the employee was scheduled to work daily over the six-month period ending when the employee began the period of leave. The leave period for this calculation includes hours for all types of leave, including vacation time.
Exceptions and Limitations:
· The Secretary of Labor may issue regulations to exclude certain health care providers and emergency responders and allow employers of these types of employees to opt out of the paid sick leave requirement. Note: Another provision of the law states “...an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” The two provision are not necessarily in conflict – employers are allowed to implement the exclusion regardless of whether the Secretary issues regulations. For example, regulations might address the manner and timing of notice to excluded employees.
· The Secretary of Labor may also exempt businesses with less than 50 employees from providing sick leave related to care of a son or daughter if the school or other place of care has been closed because of Covid-19 if the sick leave benefit requirements would “jeopardize the viability of the business as a going concern”.
It is unlawful for an employer to fire, discipline or discriminate against any employee who takes the sick leave the employer is required to provide or files any complaint related to this law.
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