MARCH 17, 2020 UPDATE - The Families First Coronavirus Response Act – What are the New Time Off Obligations that Covered Employers must Address?

Mar 17, 2020 | John C. Gardner

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.  As we previously explained in our March 15, 2020, post, the FFCRA, as originally passed, would have imposed a number of significant obligations on covered employers with respect to employee leave due to the coronavirus.  Yesterday, however, the House of Representatives passed a “Corrections” resolution by unanimous consent that dramatically lessens these potential obligations.  The bill was passed by the Senate and signed by the President on March 18th and will go into effect in 15 days 

What follows are the updated employer-leave obligations under the FFCRA.  Please keep in mind that, as before, these obligations apply only to employers with fewer than 500 employees.         

Emergency Paid Sick Leave – Employer Obligations

Covered employers are required to provide a new amount of paid sick leave for employees who are unable to work or telework as a result of a need for leave arising because:  

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 
  2. The employee has been advised by a health care 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 (1) or has been advised as described in paragraph (2); 
  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 child care provider of such son or daughter is unavailable, due to COVID-19 precautions; and 
  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. Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

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).  The total amount of compensation any employer must provide to any single employee for leave taken for these reasons is limited to $511 per day, and $5,110 in the aggregate. 

For every employee who takes emergency paid sick leave for the fourth, fifth and sixth reasons identified above (i.e., for the care of sick family members and/or children, or relating to a “substantially similar condition” specified by HHS), 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.  The total amount of compensation any employer must provide to any single employee for leave taken for these reasons is limited to $200 per day, and $2,000 in the aggregate.         

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.  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 ("DOL") 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 updated FFCRA, eligible employees will be able to take up to 12 weeks of leave for a “qualifying need related to a public health emergency”.  Such a need arises only when an employee “is unable to work (or telework)” due to a need to care for his/her child(ren) (under age 18) if his/her child(ren)’s school or place of care has been closed, or his/her child(ren)’s child care provider is unavailable, due to an emergency with respect to COVID-19 declared by federal, state and/or local government.   

Unpaid Leave for 10 Days.  According to the updated FFCRA, covered employers may choose not to pay an employee for the first ten (10) days of such 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 ten days of this (otherwise unpaid) this leave.  

Paid Leave Beyond 10 Days.  Critically, if an employee continues to be eligible for and continues to have a need for leave beyond the first ten-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.”  The total amount any covered employer can be obligated to pay any employee with respect to this leave is now capped at $200 per day, and $10,000 in total.  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 available. 

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, and the FFCRA will likely continue to change before it is finally passed.  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.