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The Families First Coronavirus Response Act – What are the New Time Off Obligations that Covered Employers must Address?

In the early morning hours of March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (the “FFCRA”) with overwhelming bipartisan support.  Although the Act has not yet been addressed by the Senate or signed into law by the President, both actions are expected to happen early during the week of March 16, 2020.  Please check back here for updates regarding any potential changes to the FFCRA during the time between its passage by the House and when it becomes law. 

As you may have heard, the FFCRA imposes some significant new obligations on employers with fewer than 500 employees.  In particular, it institutes mandatory paid leave requirements through the Emergency Paid Sick Leave Act, and amends the Family and Medical Leave Act to require additional leave, both unpaid and paid, for what the FFCRA calls “public health emergency leave.”  To ease the financial burden these new obligations will impose on covered employers, the FFCRA contains provisions providing that those employers will receive significant federal tax credits with respect to the amount of sick leave wages paid to employees under the law.  Please reach out to your regular accountant or tax attorney with respect to the details of those credits.         

Emergency Paid Sick Leave – Employer Obligations

Covered employers are required to provide all of their employees with a new amount of paid sick leave for the following purposes, through December 31, 2020:   

  1. To self-isolate because the employee is diagnosed with “coronavirus” (defined as “SARS-CoV-2 or another coronavirus with pandemic potential”); 
  2. To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus; 
  3. To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of: a) the exposure of the employee to coronavirus; or b) exhibition of symptoms of coronavirus by the employee; 
  4. To care for or assist a family member of the employee: a) who is self-isolating because the family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain diagnosis or care; b) who is the subject of an order/recommendation from a public health official or health care provider to stay out of the community because the family member has been exposed to and/or is exhibiting symptoms of the coronavirus; and 
  5. To care for the child(ren) of the employee if his/her/their “school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.”

Amount of Paid Sick Leave.  Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave; part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period.  Employees are able to take this leave regardless of the length of their service with their current employer.    

Level of Compensation Required for Paid Sick Leave.  Covered employers are required to pay every employee who takes emergency paid sick leave at a rate of compensation no less than the employee’s “regular rate” of pay (as that term is defined under the Fair Labor Standards Act (“FLSA”)) for leave taken for any of the first three reasons identified above (i.e., for the employee’s own coronavirus-related conditions).  For every employee who takes emergency paid sick leave for the fourth and fifth reasons identified above (i.e., for the care of sick family members and/or children), covered employers are required to pay the employee at a rate of compensation no less than two-thirds of his or her “regular rate” of pay.      

Emergency Paid Leave Adds to any Leave Already Offered by Covered Employers.  Unlike many other paid/unpaid leave laws enacted by various state and local governments, covered employers must provide emergency paid sick leave under the FFCRA in addition to any other paid time off the employers may already offer to their employees.  The FFCRA specifically provides that employers “may not change” their current paid leave policies – i.e., employers may not reduce the amount of leave ordinarily available under their own policies – in order to avoid the impact of the law.  In addition, employers may not require employees to take/exhaust any of their employer-provided leave time before taking emergency paid sick leave time under the FFCRA.  Employers also may not require employees who take emergency paid sick leave to find any replacement employees to take the absent employees’ place at work during their absence.       

Notice Requirements.  Covered employers will be required to post and keep posted, in conspicuous places, a notice regarding emergency paid sick leave that the Department of Labor will issue in the near future.  The DOL is also due to issue additional guidance to help employers comply with these new requirements.   

Emergency Family and Medical Leave Expansion Act – Employer Obligations

Pursuant to the FFCRA, eligible employees will be able to take up to 12 weeks of “public health emergency leave” in the following circumstances:  

  1. To comply with a recommendation or order of a public health official who has appropriate jurisdiction or a health care provider on the basis that a) the “physical presence of the employee on the job would jeopardize the health of others” because the employee has been exposed to coronavirus or exhibited symptoms, and b) the “employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order”; 
  2. To care for a family member with respect to whom a public health official having jurisdiction or a health care provider “makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of” the exposure of the family member to coronavirus or exhibition of symptoms by that family member of coronavirus; and 
  3. To care for their child(ren) (under age 18) if their child(ren)’s school or place of care has been closed, or their child(ren)’s child care provider is unavailable, due to a public health emergency.

Unpaid Leave for 14 Days.  According to the FFCRA, covered employers may choose not to pay an employee for the first fourteen (14) days of his or her public health emergency leave.  Just as under the previously established portion of the FMLA, employees may choose to substitute any accrued vacation or sick time they may have during the unpaid portion of their leave; however, covered employers may not require employees to use such paid time during the emergency leave.  On the other hand, it appears very likely that the emergency paid leave allotment provided through the FFCRA (and outlined in the first section above) can be substituted for the first two weeks of (otherwise unpaid) public health emergency leave.    

Paid Leave Beyond 14 Days.  Critically, if an employee continues to be eligible for and continues to take public health emergency leave in excess of that first fourteen-day period, covered employers are required to provide the employee with paid leave for the duration of the qualifying leave.  This paid leave must consist of an amount of pay that is not less than two-thirds of an employee’s “regular rate” of pay (per the FLSA) for “the number of hours the employee would otherwise be normally scheduled to work.”  Please note that these rules are slightly modified for employees who have schedules that vary from week to week.              

Employee Eligibility.  A much larger number of employees will be eligible for this leave than are currently eligible for the other types of leave provided by the FMLA.  In particular, employees are eligible simply if they have been employed by their current employer for a minimum of thirty (30) calendar days. 

Employers That Must Comply.  The obligation to provide this new public health emergency leave applies to all employers with fewer than 500 employees.  Consequently, even employers with fewer than fifty employees, who, until now did not need to comply with the leave provisions of the FMLA, will need to become familiar with and correctly administer this new bucket of leave.

Please note, however, that the FFCRA also provides the U.S. Department of Labor with the authority to issue regulations “for good cause” to: 1) prohibit “certain health care providers and emergency responders” from taking public health emergency leave; and/or 2) “exempt small businesses with fewer than 50 employees … when the imposition of [the new leave] requirements would jeopardize the viability of the business as a going concern.”  To date, no such regulations have been issued, but we will try to provide updated information on the potential exemptions as soon as they are. 

Job Restoration.  As under the previously existing iteration of the FMLA, covered employers must restore employees who take public health emergency leave to their previous position or an equivalent position upon their return from leave.  However, the FFCRA relaxes this requirement in certain circumstances for employers who employ fewer than 25 employees.  In particular, those smaller employers do not need to restore an employee to his or her job following public health emergency leave if: 1) the “position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave”; 2) the employer makes “reasonable efforts” to restore the employee to an equivalent position; and 3) if the employer’s “reasonable efforts” fail, the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during the following year.      

Please note that, barring amendments to the FFCRA, all of these expanded FMLA requirements will expire at the end of 2020. 

Obviously, there have been and will continue to be many employment law challenges brought on by the coronavirus and the FFCRA, whatever the law’s final form.  Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group if you need any assistance with respect to these challenges.          

About the Author

John Gardner is an attorney practicing out of our Madison office. He is the Chair of the Labor & Employment Relations practice group. He is also a member of the Litigation practice group. Contact John by email or by phone at (608) 252-9322.

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