UPDATED – COVID-19 Legislation: FFCRA is Now Law
March 18, 2020
On March 18, 2020, the U.S. Senate approved the House-passed Families First Coronavirus Response Act (“FFCRA”). The bill was sent to and signed by the President on March 18, 2020 and will be effective 15 days from signing – April 2, 2020.Employer Obligations Under The Revised Families First Coronavirus Response Act On March 14, 2020, the U.S. House of Representatives approved the Families First Coronavirus Response Act (“FFCRA”) in response to the COVID-19 pandemic and its impact on U.S. employees. Just two days later, on March 16, 2020, the House revised the bill, modifying or eliminating entirely some of the earlier bill’s key provisions. Please note that the revised bill is not yet law. The bill must still be taken up by the U.S. Senate and while we expect the Senate to move quickly, key provisions of the bill face resistance in the Senate and may change.As updated by the House, the revised bill provides two types of assistance, both of which will apply to the vast majority of employers. First, FFCRA provides for 80 hours of paid sick leave for employees to recover from and/or prevent the spread of coronavirus. Second, it expands the scope of FMLA leave to provide for care of a child whose school or place of care is closed due to the COVID-19 public health emergency.Currently, FFCRA’s provisions would take effect no later than 15 days after the date of enactment. Unlike the “traditional” FMLA, which defines a covered employer as having 50 or more employees, FFCRA would only apply to employers with fewer than 500 employers. The bill does contain language allowing the Secretary of Labor to exclude health care providers and emergency responders from the definition of employees who are eligible to take such leave, and to exempt small businesses (defined as those with fewer than 50 employees), if the required leave would jeopardize the viability of their business.Emergency Paid Sick Leave FFCRA provides 80 hours of paid sick leave for full-time employees. Part-time employees would receive paid sick leave on a pro-rated basis. Under the revised bill, employees would be eligible for paid sick leave if the employee is unable to work or work from home, under the following circumstances: The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;The employee has been advised by a health care provider to self-quarantine because of COVID-19;The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;The employee is caring for an individual subject or advised to quarantine or isolation;The employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; orThe employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.Under the amended bill, paid leave is capped at $511 per day ($5,110 in total) where leave is taken for reasons 1, 2 and 3 above; and $200 per day ($2,000 in total) where leave is taken for reasons 4, 5 or 6. FFCRA paid sick leave is available immediately, regardless of length of employment. Note that sick leave under FFCRA must be provided in addition to whatever paid sick leave, PTO or vacation pay the employer already provides. In other words, if an employer already provides employees with two weeks of paid sick leave, the FFCRA leave must be provided in addition to the existing paid sick leave. Finally, employers may not retaliate against employees for taking paid sick leave under FFCRA.Emergency Family and Medical Leave Expansion FFCRA’s FMLA expansion will allow covered employees to take 12 weeks of FMLA leave between enactment and December 31, 2020 for “a qualifying need related to a public health emergency.” This “qualifying need” is now limited to instances where an employee is unable to work or telework due to the need to care for a child if the child’s school or place of child care has been closed or the child care provider is unavailable, due to a public health emergency. This is a substantial departure from the original version of the bill.Key provisions under the revised bill include: A covered employee includes anyone employed by the employer for 30 days or more.The first 10 days of any coronavirus-related family leave may be unpaid, but subsequent time must be paid in an amount that is not less than two-thirds of an employee’s regular rate of pay. Unlike the original bill, the amended legislation limits the amount of required pay for leave to no more than $200 per day and $10,000 total.Employees can elect to substitute any accrued paid vacation, parental, medical or sick leave for unpaid leave, but employers cannot require employees to substitute paid leave for unpaid leave.The leave is job-protected, meaning an employer must return the employee to the same or equivalent position upon return, with limited exceptions.To help offset the cost of paid leave, the bill provides employers with a tax credit for amounts paid for both Emergency Sick Leave and Emergency FMLA. However, this tax credit is only available to employers who are required to provide the leave, not those that do so voluntarily.As noted above, what is outlined here is only the House’s (second) version of the bill. The Senate must still take up the bill and additional changes are likely. Given the rapid, and changing, legislative response to the COVID-19 crisis, Shuttleworth & Ingersoll will continue to closely monitor this and other legislative activity. Please contact any of our employment attorneys if you need additional guidance regarding this update.