Families First Coronavirus Response Act (FFCRA)

All Employers – the federal government has passed the Families First Coronavirus Response Act (FFCRA) which directly impacts all employers with up to 500 employees.

This is the first federal law passed to provide some relief to employees.  FFCRA contains several major provisions, three of which directly impact employers with up to 500 employees.

Two major emergency components require paid leave (with available tax credit/refund to employer) for certain Coronavirus related reasons through December 31, 2020 (expiration date).  The below summarizes both paid leave components of the law.

Emergency Paid Sick Leave (EPSL)

A. EPSL is immediately available to all employees (no eligibility or time worked requirements)
B. Reasons for leave:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to13 COVID-19.
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph B.1. above or has been advised as described in paragraph B.2. above.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. 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.

C. Hours of paid leave

1. Full Time – 80 hours
2. Part Time – average hours for a 2-week period:
   i. If hours are fixed use those hours for a 2-week period
   ii. If hours are not fixed:
   1) Calculate average daily hours over the prior 6 months as of date of leave including paid time off of any kind and then use those hours to calculate 2-weeks’ worth of hours; or
   2) If employee has not worked 6 months then use “the reasonable expectation of the employee at time of hire” they would normally be scheduled to work

D. Rate of pay for EPSL purposes

1. For EPSL reasons B.1. through B.3. above
   i. Regular rate of pay under the FLSA (Fair Labor Standards Act) essentially a weighted average of all forms of pay (hourly, non-discretionary bonus, commission, etc.). This is not just a straight time hourly rate (unless hourly wage is the only wage employee is paid).
   ii. Any questions at all about calculating the “regular rate of pay” call us or another experienced/knowledgeable employment lawyer as it can be complicated
2. For EPSL reasons B.4. through B.6. above two thirds (2/3) of the regular rate – the law allows employer to pay less for those reasons versus the first three qualifying EPSL reasons.

E. Maximum EPSL Wages Paid

1. For EPSL reasons B.1. through B.3. above $511/day; $5,110 total/aggregate
2. For EPSL reasons B.4. through B.6. above $200/day; $2,000 total/aggregate

F. Other

1. EPSL is in addition to other LOAs required by law or employer policy/employee handbook
2. Use it or lose it/no carryover
3. Employer cannot require employee to find replacement coverage
4. No retaliation (of course) against use of EPSL
5. Must reinstate after leave
   i. There are exceptions related to economic hardship/other reasons (call us or call us or another experienced/knowledgeable employment lawyer if you think you don’t want to return employee to work)
   ii. If exception applies, employer has ongoing obligations to essentially recall or offer alternative positions to employee (again call us or an experienced employment lawyer to discuss along with whether an exception applies in the first place)

Emergency Family Medical Leave Expansion Act – Qualified Need Related to A Public Health Emergency

A. This adds to the Family Medical Leave Act on a temporary basis through 12/31/2020

1. This is an emergency, specific, and short term additional reason for FMLA leave
2. This emergency component of FMLA applies to all employers with less than 500 employees (unlike the rest of FMLA which only applies to employers with 50 or more employees)
3. Employee who have worked 30 days are eligible (unlike the rest of FMLA where employee must work 12 months and 1250 hours in the past 12 months)

B. Reason for leave is narrow. Must be a “Qualified Need Related to A Public Health Emergency” (QNRPHE), which means “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee 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”(emphasis added). This is a very specific reason for paid leave.

1. “School” means elementary or secondary school

C. Paid Leave

1. First 10 days of QNRPHE employer need not pay (note EPSL covers this period of time at 2/3 regular rate capped at $200/day, $2,000 total/aggregate (with available tax credit/refund), see above under EPSL
2. After 10 days up to 12 weeks QNRPHE leave is paid (other forms of FMLA leave remain unpaid)

D. Rate of pay for QNRPHE purposes – two thirds (2/3) of the regular rate of pay under the FLSA (see note above) multiplied by the number of normal scheduled hours, or if scheduled hours vary, use the following number:

1. Average number of hours that the employee was scheduled per day over the 6-month period ending on date of leave, including scheduled hours for which employee took leave of any kind; or
2. If employee has not worked 6 months then use “the reasonable expectation of the employee at time of hire” they would normally be scheduled to work

E. Maximum QNRPHE Wages Paid $200/day; $10,000 total/aggregate (with available tax credit/refund).

Employer Tax Credit or Refund to Recover EPSL or paid QNRPHE

The law allows the employer to recover EPSL and QNRPHE wages paid via payroll tax credit and/or refund. Check with your tax advisor/tax lawyer.

Summary of Impact Based on Employer Size

As usual when laws are amended in emergency fashion, things can get confusing. Here’s our view of how FMLA meshes with this new emergency legislation.

A. General Family Medical Leave Act (FMLA) application

1. Applies to employers with 50 or more employees
2. Usual employee eligibility rules apply (worked 12 months; 1250 hours in prior 12 months, 50 employees within 50 mile radius of employee’s worksite)
3. Other than emergency QNRPHE Leave, all other FMLA reasons for leave are unpaid

B. QNRPHE – new, short term, and narrow reason under FMLA (as stated above)

1. Applies to employers with “fewer than 500” (499 or less) employees
2. Employee eligibility – worked at least 30 days
3. This is paid – but is leave for care of son or daughter only and only if their school (elementary/secondary) or place of care is closed, or child care provider is unavailable due to due to a public health emergency

C. EPSL

1. Applies to employers with “fewer than 500” (499 or less) employees
2. Employee is eligible immediately
3. Paid leave for up to 80 hours (FT), average of 2-week period (PT)