Responding to the Coronavirus Outbreak as legal professionals means constant monitoring so that we can provide clients and callers with the most up-to-date information and advice possible. The Families First Coronavirus Response Act has temporarily expanded paid leave rights in two important ways: creating a paid sick leave benefit for certain workers affected by the outbreak and a 12 week paid caregiver leave for parents caring for minor children during school closures. How does it work?
The Emergency Paid Sick Leave Act modifies the FLSA to create a two week paid sick leave right for employees of businesses employing less than 500 workers.
- * Covers employees who are unable to work or telework because of:
- A quarantine or isolation order related to COVID-19 (or caring for an individual subject to such order).
- Advice of a health care provider to self-quarantine due to concerns related to COVID-19 (or caring for an individual subject to such advice).
- Employee experiencing COVID-19 symptoms and seeking medical diagnosis.
- Caregiver responsibilities for a son or daughter of employee whose school, place of care, or child care provider is unavailable due to COVID-19 precautions.
- Other similar conditions to be defined by the Department of Health and Human Services.
- * Provides for 80 hours of paid sick time for full time employees (an average of two week hours for part time employee) at the full regular rate of pay for employees unable to work based on their own health condition. The Sick leave pay is reduced to 2/3 of the regular rate for employees who are unable to work based on care for others.
- * Employers of healthcare workers and first responders may elect to exempt themselves from application. (They would not pay sick leave and would not get the corresponding tax refund).
- * Employer may not require the employee to find a replacement worker to fill in during the sick time period
- * Employer may not discharge or discipline an employee for taking Emergency Paid Sick Leave under the act (or filing any complaint, instituting a proceeding, testifying in any proceeding related to the Act).
- * Secretary of Labor may exclude small businesses employing fewer than 50 employees in circumstances where compliance would jeopardize the viability of the business.
- * Special provisions for self-employed individuals: Section 7002 of the FFCRA extends the business tax credit/refund to fund emergency sick leave to self- employed workers who are unable to work in the same circumstances as other employees.
The Emergency Family Medical Leave Expansion Act, also part of FFCRA, modifies the FMLA to create a Coronavirus related paid leave for parents of minor children with caregiver responsibilities for minor children who are employed by businesses employing less than 500 workers.
- * Covers employees employed for more than 30 days (not the usual 12 month FMLA eligibility requirement)
- * Covers “Qualifying need related to a public health emergency” defined as:
- Unable to work (or telework) due to a need to care for a son or daughter under 18 years old if their school or place of care or childcare provider is unavailable due to COVID-19 declared emergency.
- Excludes health care providers and emergency responders. (Subject to Department of Labor defining regulations).
- May exempt certain small businesses employing less than 50 employees, if the requirements would jeopardize the business as a going concern. (Subject to Department of Labor defining regulations).
- First 10 days may be unpaid (or employee may elect to use accrued vacation or PTO days).
- Employees should receive paid leave at 2/3 of the regular rate of pay (but not more than $200 per day or $10,000 total).
- Employers of fewer than 25 employees are not required to return the employee to the same position at the end of the leave period (if the inability is a result of the public health emergency) but must make reasonable efforts to return the employee to a comparable position for up to 12 months following the end of the leave or the end of the public health emergency (whichever is earlier).
- * Existing FMLA rights to unpaid leave may still apply for employees requiring medical leave for their own serious health condition or covered caregiver responsibilities for a family member with a serious health condition (which may include COVID-19 related symptoms and treatment).
Under both provisions of the FFCRA, employers would generally qualify for a tax credit or refund of 100% of the benefits paid. Readers who are confronting their own questions about how these provisions would apply in particular circumstances should seek individual legal advice. In addition to the FFCRA, more COVID-19 legal changes are expected under the anticipated federal relief package.
At Blanchard & Walker, we will continue to monitor the evolving legal landscape so that we can provide the best and most up-to-date advice to our clients.
You can find more on the FFCRA from the Department of Labor and other guidance in the links below.
Department of Labor Resources
Families First Coronavirus Response Act: Questions and Answers
Families First Coronavirus Response Act: Employee Paid Leave Rights
Families First Coronavirus Response Act: Employer Paid Leave Requirements
COVID-19 and the Fair Labor Standards Act: Questions and Answers
COVID-19 and the Family and Medical Leave Act: Questions and Answers
Occupational Safety and Health Administration Resources
Guidance on Preparing Workplaces for COVID-19