On March 18, 2020, Congress passed the Families First Coronavirus Response Act (“FFCRA” or “Act”), H.R. 6201, which requires certain employers to provide employees with expanded sick leave and family leave (under the FMLA) for specified reasons related to COVID-19.
Here are the important aspects of the new law:
Covered Employers/Employees
Under FFCRA, the paid FMLA and sick leave provisions apply to private employers with fewer than 500 employees, and certain public agencies – which, under federal law, would include the federal government, state government, and any political subdivision thereof – that have at least one employee. The Act also allows the U.S. Department of Labor to implement subsequent regulations that would exempt small businesses with fewer than 50 employees in the event the additional protections jeopardize the viability of the business.
FMLA Expansion
FFCRA amends the FMLA to allow an employee to use leave to take care of a child under 18 years of age if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a “public health emergency,” leaving the employee unable to work (or telework). A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
It’s worth noting that earlier versions of the bill made leave available for many more purposes. The version that was signed into law by the Republican-controlled Senate, however, only provides paid leave for school/child-care closures, as set forth above.
The Act gives up to 12 weeks of paid FMLA leave to employees who have worked for the employer for at least 30 calendar days. After the first 10 days of leave, employees must be paid 2/3rds of their regular rate of pay for each day of leave taken, based on the number of hours the employee would otherwise be regularly scheduled to work. Payment is capped at $200 per day and an aggregate of $10,000.
You can find a more detailed discussion on the FMLA expansion here.
Emergency Paid Sick Leave
FFCRA also vests certain employees with the right to use sick leave for reasons related to COVID-19. Private employers with fewer than 500 employees (and public agencies as described above) must immediately make available 80 hours of paid sick leave for full-time employees — or, for part-time employees, a pro-rated amount equal to the average number of hours they’ve worked a two week period — for the reasons set out below (which are somewhat different than those provided in the original bill):
- 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 healthcare 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 an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the 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.
The legislation provides for two formulas for compensation:
- Employers must compensate employees for Emergency Paid Sick Leave at the greater of (a) their regular rate of pay, or (b) the applicable minimum wage, for the reasons described in (1) through (3), above. In these cases, payment is capped at $511 per day and an aggregate of $5,110.
- Employers must compensate employees for Emergency Paid Sick Leave at the greater of (a) 2/3 their regular rate of pay, or (b) 2/3 the applicable minimum wage, for the reasons described in (4) through (6), above. In these cases, payment is capped at $200 per day and an aggregate of $2,000.
Under the Act, an employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave available under the Act. Furthermore, in most cases, the employee’s job will be protected while he/she uses leave, as any employer with more than 24 employees must restore the employee to the same or equivalent position after the employee returns to work.
–Alex Pacheco, IBEW 1245 General Counsel