Employers Must Provide Extensive Paid Sick Family Leave

On March 18, 2020, President Trump enacted a new law requiring employers to provide leave to employees related to COVID-19. The law, titled the Families First Coronavirus Response Act (FFCRA), is effective 15 days from the date it was enacted, or on April 1, 2020. FFCRA sunsets after December 31, 2020.

FFCRA Employer Mandate, Based On Size And Type Of Employer:

Less Than 50 Employees – Small Business

Small businesses with less than 50 employees may be eligible for an exemption from the Department of Labor (DOL) if giving paid sick leave “would jeopardize the viability of the business.”

• This exemption will be controlled by DOL regulations.

If a small business is not exempt:

The employer must provide 2 weeks of PAID sick leave, at the employee’s normal pay rate usual rate, subject to the caps noted below, and no waiting period.

The employer must provide 12 weeks of family leave if the employee’s child cannot attend school or obtain childcare due to COVID-19 (the first 10 days are UNPAID, the rest is PAID), at two-thirds of the employee’s regular rate of pay, subject to the compensation caps noted below.

• To qualify for family leave, an employee must work for an employer for at least 30 days.

Any Number Of Employees – Public employer; 50 – 499 Employees – Private Employer

Employer must provide 2 weeks of PAID sick leave, at normal pay rate with caps noted below and no waiting period.

12 weeks of family leave if the employee’s child cannot attend school or obtain care due to COVID-19 closures (first 10 days unpaid, the rest is paid) at 2/3 normal rate with caps noted below.

-To qualify for family leave, an employee must work for an employer for at least 30 days.

Any number of employees up to 499 – Employer employs health care providers and emergency responders: These employers are exempt from the FFCRA if they “opt-out.”

500 or more employees: Exempt from the FFCRA.

FFCRA Sick Leave Compensation for Employee – Compensation CAPS:

Sick Leave

Employee taking sick leave under categories 1, 2, 3 below: if salaried, receive regular pay for two weeks; if hourly, pay for “normally scheduled” hours (average) for two weeks, generally using a 6 month look back period, up to 80 hours. Overtime is not included in the calculation.

• Daily cap: $511
• Aggregate cap: $5,110

Employee taking leave under categories 4, 5, 6 below: receive two-thirds of their normal rate of pay for two weeks

• Daily cap: $200
• Aggregate cap: $2,000

Employees can receive sick leave if they are unable to work (or telework) under these 6 categories:

1. Quarantine/Isolation Order – Employee is subject to a Federal, State, or local quarantine or isolation order for COVID–19.
2. Told By Health Care Provider To Quarantine – Employee has been told by a health care provider to self-quarantine due to COVID–19 concerns.
3. COVID-19 Symptoms And Awaiting Diagnosis – Employee is experiencing COVID– 19 symptoms and seeking a medical diagnosis.
4. Caring For Someone – Employee is caring for someone who is subject to a COVID–19 quarantine or isolation order or has been told to quarantine by a health care provider.
5. Childcare – Employee is caring for their child if the school or care provider is closed/unavailable due to COVID-19.
6. Other Similar Condition – Employee has any other substantially similar condition specified by HHS.

Reasonable Notice Procedures: After employees take the first sick day under the FFCRA, the employer can require the employee to follow reasonable notice procedures in order to continue receiving paid sick time.

Don’t have to Exhaust Current Leave: Employees don’t have to exhaust their current paid time off to use the sick leave or family leave afforded by FFCRA.

Don’t have to Help Employer Find Replacement: Employees are not required to help employers find a replacement to fill in during their FFCRA absence.

FMLA – Emergency Changes Per FFCRA (“EFMLA”)

• Instead of 50 or more employees, “EFMLA” now applies to less than 500 employees.
• Small businesses with less than 50 employees can be exempt if the leave requirements would jeopardize the viability of their business.
• “Qualified Need Related to Public Health Emergency”: a qualified employee gets up to 12 weeks of leave (subject to compensation caps, first 10 days are unpaid) if employee is unable to work (or telework) due to a need for leave to care for their child under 18 years old if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
• Compensation caps per employee: $200/day; $10,000 aggregate. The first 10 days is unpaid, but an employee can substitute accrued paid time off for that 10-day period.
• An employee only needs to work for an employer for 30 days to get qualified family leave, as opposed to the usual FMLA requirement of 1,250 hours or 12 months of service.