The coronavirus, or COVID-19, pandemic has put small business owners and employers into unprecedented positions. As both employers and employees learn how to navigate this new normal, employers must now learn to navigate the Family First Coronavirus Response Act (FFCRA). The FFCRA requires certain employers to provide employees with paid sick leave due to certain qualifying reasons. For an overview of the act and what to expect as an employer, continue reading below:
When FFRCA will go into effect
Per the Department of Labor (“DOL”), the effective date of the FFCRA will be April 1, 2020. Any leave sought pursuant to FFCRA must be taken between April 1, 2020 and December 31, 2020. The FFCRA is not retroactive. An employer is not required to provide FFCRA benefits for leaves of absence taken prior to April 1, 2020.
The DOL has stated that it will observe a temporary period of non-enforcement through April 17, 2020, so long as the employer has acted reasonably and in good faith to comply with the FFCRA. Per the DOL Bulletin, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the DOL receives a written commitment from the employer to comply with the FFCRA in the future. This limited stay of enforcement will be lifted after April 17, 2020, and the DOL will begin enforcing violations of the FFCRA.
Which businesses are considered covered employers?
The FFCRA applies to all private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Details regarding the applicability of this exemption are expected from the DOL in April 2020.
The FFCRA also provides an exemption for employers of health care providers and emergency responders. Per the DOL, employers of health care providers and emergency responders may elect to exclude such employees from eligibility for the paid leave provided under the FFCRA.
On March 25, 2020, the DOL issued a mandatory notice form that covered employers must post to provide their employees with notice of their rights under the FFCRA. The employer must post the notice in a conspicuous place on its premises. An employer may also satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.
Qualifying reasons for leave
The DOL has published the following list of qualifying reasons for paid sick leave, during which the employee is unable to work or telework:
|Qualifying Reason for Leave||Duration of Leave||Pay Rate||Pay Cap|
|1.||Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.||Two (2) weeks paid leave||Higher of regular rate of pay or minimum wage||Cap of $511 per day and $5,110 in the aggregate over the two-week period|
|2.||Employee has been advised by a health care provider to self-quarantine related to COVID-19.||Two (2) weeks paid leave||Higher of regular rate of pay or minimum wage||Cap of $511 per day and $5,110 in the aggregate over the two-week period|
|3.||Employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2).||Two (2) weeks paid leave||Higher of regular rate of pay or minimum wage||Cap of $511 per day and $5,110 in the aggregate over the two-week period|
|4.||Employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2).||Two (2) weeks paid leave||Higher of 2/3rds the regular rate of pay or 2/3rds minimum wage||Cap of $200 per day and $2,000 in the aggregate over the two-week period|
|5.||Employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.||Twelve (12) weeks
|Higher of 2/3rds the regular rate of pay or 2/3rds minimum wage||Cap of $200 per day and $12,000 in the aggregate over the twelve-week period|
|6.||Employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.||Two (2) weeks paid leave||Higher of 2/3rds the regular rate of pay or 2/3rds minimum wage||Cap of $200 per day and $2,000 in the aggregate over the two-week period|
FFCRA leave due to lack of child care
An employee who requires leave due to a lack of child care as a result of COVID-19 may be eligible for both paid sick leave under the Emergency Paid Sick Leave Act and paid FMLA leave under the Emergency and Family Medical Leave Expansion Act (“Expanded FMLA”).
This means that the employee can collect on 12 weeks of paid leave at a rate of 2/3rd of his or her regular rate of pay (up to the daily and aggregate caps) for the hours they would have been scheduled to work. The first two weeks of leave, which are unpaid under the Expanded FMLA, constitute paid leave under the Emergency Paid Sick Leave Act. The Expanded FMLA subsequently provides for an additional 10 weeks of paid leave, thereby providing a total of 12 weeks of paid leave.
The DOL has not yet provided any clarification around what, if any, certification or documentation an employer may request to confirm a bona fide need for child care leave under these provisions. This may, however, be addressed by the DOL’s forthcoming regulations.
Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.
Recommended procedures for compliance with FFCRA
It is recommended that the employer make a record of each employee’s qualifying reason for leave.
Guidelines indicate that an employee should provide notice of leave to the employer as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time. Employers should, therefore, advise employees that any standard notice procedures for leave or absences must be followed.
An employee may elect to use existing vacation, personal, or medical or sick leave under his or her employer’s policy, in lieu of his or her entitlement to partially-paid sick leave during his or her first two weeks of leave identified above. If this election is made, it is recommended that this election be made in writing for the employer’s records in the future.
This post is for purposes of providing information and is not intended to constitute legal advice. If you have questions or concerns about employment law issues involving COVID-19, please contact Skelton Slusher Barnhill Watkins Wells, PLLC by calling (936) 632-2300 so that an attorney can provide situation-specific guidance in handling your employment law matters.