In response to the COVID-19 pandemic, the Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020. The FFCRA creates a number of provisions related to paid sick leave and expanded family and medical leave. These provisions went into effect on April 1, 2020 and will continue through December 31, 2020. Most private employers (and many public employers) with fewer than 500 employees are covered by the changes, which apply regardless of whether an employee is full-time or part-time. This article provides a brief overview of some of the FFCRA’s provisions in relation to paid sick leave and expanded family and medical leave.
Paid Sick Leave
In general, covered employers must provide their employees with two weeks (up to 80 hours) of paid sick leave if the employee cannot work because (1) he or she is quarantined (by government order or on the advice of a healthcare provider) or (2) the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. Employers must pay these employees at their regular rate of pay or at the applicable minimum wage, whichever is higher. However, pay is capped at $511.00 per day.
If an employee of a covered employer cannot work because he or she (1) has a bona fide need to care for someone who is quarantined, (2) must care for a child whose school or daycare provider has closed or whose school or daycare provider is unavailable due to COVID-19 related reasons, or (3) the employee is experiencing a substantially similar condition as specified by the secretary of Health and Human Services, then the employee is also entitled to two weeks of paid sick leave. In such cases, however, employers must only pay their employees at two-thirds of their regular rate or two-thirds of the applicable minimum wage, whichever is higher, but not more than $200.00 per day.
The paid sick leave provisions apply to both full-time and part-time employees, with full-time employees eligible for up to 80 hours of leave and part-time employees eligible for the number of hours that the employee works on average over a two-week period. Paid sick leave is capped at 80 hours (i.e. employees may not take 80 hours of paid sick leave for one qualifying reason and then another 80 hours of paid sick leave for another qualifying reason). For paid sick leave under the FFCRA, employers may not require employees to use other leave entitlements, such as accrued vacation, personal, medical, or sick leave under the employer’s policies prior to the employee taking paid sick leave under the FFCRA.
Expanded Family and Medical Leave
Any employer who is covered by the FFCRA must give 10 weeks of paid expanded family and medical leave to its employees who have worked for at least 30 calendar days and whose child’s school or childcare provider has closed or is unavailable due to COVID-19. Under this provision, the employer must pay the employee at two-thirds of the employee’s regular rate of pay, capped at $200 per day. For expanded family and medical leave, employers must pay their employees for all hours that the employee would have been scheduled to work, including overtime (this provision is in contrast to the paid sick leave provisions, which only requires employers to pay employees up to 80 hours).
It is possible that an employee may be eligible for both paid sick leave and paid expanded family and medical leave. For example, an employee may qualify for two weeks of paid sick leave and ten weeks of paid expanded family and medical leave as a result of having to care for a child whose school or childcare provider is closed due to COVID-19 related reasons. In such cases, the employee may take up to 12 weeks of paid leave, with the first two weeks paid at the employee’s full rate under the paid sick leave provisions and the remaining ten weeks paid at two-thirds of the employee’s regular rate of pay under the expanded family and medical leave provisions.
In contrast to the FFCRA’s paid sick leave provisions, employers may require employees seeking leave under the FFCRA’s expanded family and medical leave provision to take concurrently paid leave that the employee is entitled to under the employer’s existing paid leave policies. This provision only applies after the first two weeks of leave, however. Such leave includes personal leave and paid time off but excludes medical and sick leave under the employer’s existing policies if the employee (or covered family member) is not ill.
Exemptions for Certain Small Businesses
Small business with less than 50 employees may be able to qualify for an exemption from the requirement to provide leave due to school closings and childcare unavailability. These businesses may only qualify for the exemption, however, if the leave requirements would jeopardize the viability of the business as a going concern. Businesses seeking an exemption should be careful to document why they meet the criteria for the exemption.
Tax Credits for Employers
To offset the cost of the FFCRA’s paid sick leave and expanded family and medical leave provisions, employers are entitled to dollar-for-dollar reimbursements through tax credits for the wages paid by employers pursuant to the FFCRA. These tax credits also apply to amounts paid or incurred by employers to maintain health insurance coverage. In order to receive the tax credits, it is important for employers to keep detailed records of all qualifying leave taken by employees. These records should include, but are not limited to, the employee’s name, dates of leave, reason for leave, and a statement from the employee that he or she is unable to work because of a qualifying reason.
This article is intended to provide a brief overview of some the FFCRA’s paid sick leave and expanded medical and family leave provisions. For more information, please contact Albee Law PC at (312) 279-0115 or info@albeelaw.com.
