March 19, 2020
By: Robbins, Salomon & Patt, Ltd.
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) passed by the House was passed by the Senate as the “Emergency Paid Sick Leave Act (EPSLA) of 2020” and signed into law by the President. The new measure gives workers two weeks of paid sick leave if they are affected by the pandemic but limits the next 10 weeks paid leave to those caring for a child whose school or day care has been shut down. Employees who had been in quarantine or caring for a family member will not be eligible for the additional 10 weeks of paid leave.
Here are the details.
Families First Coronavirus Response Act (FFCRA) – Overview
The bill originally passed by the House, only applies to employers with fewer than 500 employees, and includes the following:
Paid Sick Leave: Paid sick leave for coronavirus-related absences not covered under an existing employer-provided paid sick leave plan. Called the “Emergency Paid Sick Leave Act (EPSLA) of 2020,” it provides 80 hours of paid sick leave for full-time employees. Part-time employees are eligible for paid sick leave based on the average number of hours worked over time.
FMLA Expansion: Called the “Emergency Family and Medical Leave Expansion Act” (EFMLEA), it expands the qualifying reasons for leave under the FMLA.
Tax Credits: Payroll tax credits to employers for payment of paid sick or paid family leave benefits to their employees. These tax credits are provided on a quarterly basis and are allowed against the employer’s Social Security taxes subject to certain caps and limits.
Families First Coronavirus Response Act (FFCRA) – The Specifics
Emergency Family and Medical Leave Expansion Act (EFMLEA)
The EFMLEA is a limited-time amendment to the existing FMLA which provides workers with 12 weeks of unpaid protected leave.
The EFMLEA provides up to 10 weeks of paid leave to eligible employees for staying home due to coronavirus, caring for a family member under quarantine or isolation, and/or caring for a minor who cannot attend school or daycare because of coronavirus.
Under the EFMLEA, the first two weeks of time away from work remain unpaid, while the following ten weeks are paid at two-thirds while on leave. This benefit will only apply to eligible employees, those who have been employed for at least 30 calendar days. Employees can also use any paid vacation, personal, or sick days during their first 14 days of unpaid leave.
The EFMLEA applies to employers with fewer than 50 employees. The EFMLEA gives the Department of Labor (DOL) authority to create regulations that would: “exempt small businesses with fewer than 50 employees from the requirements of [the EFMLEA] when the imposition of such requirements would jeopardize the viability of the business as a going concern.”
It is more than likely that many small businesses may avoid extending EFMLEA paid leave benefits to their workers, should they so choose.
Other details in the EFMLEA include;
Expanded definition of a family member to include: a pregnant woman, senior citizen, or individual with a disability, any of whom are; the child of an employee, the next of kin of an employee (or person for whom the employee is next of kin), or the grandparent or grandchild of an employee
Expanded definition of parent to include: parent-in-law, parent of a domestic partner’s child
A new leave reason, a closed school or closed childcare provider
A modified definition of a covered employer, an employer with fewer than 500 employees (though the law allows the DOL to exempt businesses with fewer than 50 employees if the imposition of leave requirements would jeopardize business viability)
An expanded definition of an eligible employee: employees who have been employed for at least 30 calendar days by the employer
Authority granted to the DOL to exclude health care providers and emergency responders from the definition of an eligible employee
An expansion of the qualifying reasons for leave to include: quarantine, by recommendation or order by a public health official or health care provider (the employee must also be unable to perform jobs functions through telework)
A further expansion of the qualifying reasons for leave to include: care for a (recommended or ordered) quarantined family member, including a parent, spouse, next of kin, son or daughter under the age of 18, grandparent or grandchild.
Emergency Paid Sick Leave Act (EPSLA)
The EPSLA is another law contained within the FFCRA that now provides paid leave to workers impacted by the coronavirus pandemic. It provides full-time employees with up to 80 hours of paid sick leave for many of the same coronavirus reasons specified in the EFMLEA.
Paid sick leave pay is equal to an employee’s current compensation, unless the employee is caring for an eligible family member affected by the coronavirus. In that case, it is reduced to two-thirds of the employee’s regular pay.
Part-time employees are also entitled to paid sick leave, but it is limited to the average number of hours the employee works over a two-week period.
The EPSLA also contains provisions barring employers from discriminating against employees who exercise their rights under the law. Employers are prohibited from retaliating against any employee who files a complaint or initiates a proceeding under the EPSLA.
Unlike the EFMLEA, the EPSLA does not authorize the DOL to create regulations that would exempt small businesses, such as those with fewer than 50 employees.
Yet, it’s possible that the EPLSA may provide benefits that cover far more employees than the EFMLEA.
Employers are required to post notices alerting employees to these new laws. The law orders the DOL to provide a guidance within seven days of enactment.
For employers with existing sick leave, leave under this law is in addition to prior benefits, meaning, employers may not change their policy now that the law has been enacted, to avoid the new provisions.
The Families First Coronavirus Response Act sunsets at the end of 2020.