The FFCRA takes effect on April 1, 2020, and requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s Wage and Hour Division administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.
Generally, the FFCRA provides that employees of covered employers are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work due to a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Covered Employers:
The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. Employers should count employees on leave; temporary employees who are jointly employed; and day laborers supplied by a temporary agency. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
Eligible Employees:
All employees
of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19.
Employees employed for at least 30 days
are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19. An employee is considered employed for at least 30 calendar days if the employee was on the employer’s payroll for the 30 calendar days immediately prior to the day the leave would begin. If the employee was working for a company as a temporary employee, and the company subsequently hires that temporary employee on a full-time basis, the employee may count any days he or she worked as a temporary employee toward the 30-day eligibility. Under the Act, special rules apply for Health Care Providers and Emergency Responders.
Notice:
Where leave is foreseeable, an employee should provide notice of leave to the employer as soon 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. Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (
or unable to telework
) due to a need for leave because the employee:
1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine related to COVID-19;
3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. Is caring for an individual subject to an order described in (1) or
self-quarantined as described in (2);
5. Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
6. 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.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.
Telework:
Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA. An employee is unable to work if an employer has work and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the employer’s normal worksite or by means of telework. If the employee and employer agree that the employee will work the normal number of hours, but outside of the normally scheduled hours (for instance early in the morning or late at night), then the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents an employee from working that schedule.
If an employer allows telework and an employee is unable to telework the normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act, the employee may take paid sick leave or expanded family and medical leave intermittently while teleworking. In that situation, an employee and employer must agree that the employee may take paid sick leave intermittently while teleworking. Similarly, if an employee is prevented from teleworking the normal schedule of hours because the employee needs to care for a child whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19 related reasons, the employee and employer must agree that the employee can take expanded family medical leave intermittently while teleworking.
Unless an employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because an employee is :
1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
5. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Unless an employee is teleworking, once an employee begins taking paid sick leave for one or more of these qualifying reasons, an employee must continue to take paid sick leave each day until he or she either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.
If an employee no longer has a qualifying reason for taking paid sick leave before he or she has exhausted the paid sick leave, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.
In contrast, if an employee and employer agree, the employee may take paid sick leave intermittently if the employee is taking paid sick leave to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons.
Duration of Leave:
- For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
- For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for his or her average number of work hours in a two-week period. Therefore, an employer calculates hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, an employer may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that. If this calculation cannot be made because the employee has not been employed for at least six months, the employer should use the number of hours that were agreed upon at hiring. And if there is no such agreement, an employer may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
Calculation of Pay:
- For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
- For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
- For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
The regular rate of pay used to calculate an employee’s paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which leave is taken. If an employee has not worked for the employer for six months, the regular rate used to calculate an employee’s paid leave is the average of the employee’s regular rate of pay for each week the employee has worked for the employer.
If an employee is paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.
An employer can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
Paid sick time provided under this Act does not carryover form one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave.
The Emergency Family and Medical Leave Expansion Act requires employers to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.
If the employee’s schedule varies from week to week the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.
If an employer reduces an employee’s work hours because it does not have work, an employee may not use paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work. This is because an employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. However, an employee may take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working a full schedule.
Reinstatement Rights:
Employers with 24 or Less Employees are not obligated to reinstate an employee at the end of his or her leave under the Emergency Family Medical Leave Expansion if:
1. The employee’s position has been eliminated due to economic conditions or other changes in operating conditions of the employer caused by COVID-19; and
2. The employer is unable to reinstate the employee to an equivalent position.
However, the employer must continue to make reasonable efforts to restore the employee to an equivalent position for 1 year after the earlier of:
1. The date on which the qualifying need related to a public health emergency concludes; or
2. 12 weeks after commencement of the employee’s leave. Employers with 25 or More Employees must return the employee to the same or equivalent position after taking Emergency FMLA leave.
This is the same job restoration obligations as under traditional FMLA leave.
Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. Given that many places of employment may be closed on April 1, 2020, the day the poster should go up, employers may want to post virtually or on an employee website. In any event, the notice should be placed in a conspicuous manner where it can be seen by all employees. Job applicants should also be informed of the FFCRA notice. The poster can be found at the following link:
Record Keeping:
If an employee takes paid sick leave under the Emergency Paid Sick Leave Act, an employer must require the employee to provide appropriate documentation in support of the reason for the leave, including: the employee’s name; qualifying reason for requesting leave; statement that the employee is unable to work including telework; and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. If the employer intends to claim a tax credit under the FFCRA for payment of the sick leave wages, an employer should retain this documentation. An employer should also consult the IRS’s applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
If an employee takes expanded family and medical leave, under the Emergency Family and Medical Leave Expansion Act, to care for his or her child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 employer must require the employee to provide appropriate documentation in support of such leave, just as an employer would for conventional FMLA leave requests. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If an employer intends to claim a tax credit under the FFCRA for the expanded family and medical leave, an employer should retain this documentation. An employer should also consult the IRS’s applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
Prohibitions:
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA. Further, an employer may not require the employee to search for or find a replacement to cover the hours the employee will be out on sick leave. The employer may not require an employee to use other paid leave options the employer provides before using federal paid sick leave. The federal paid sick leave is separate and in addition to state, local, or company provided sick leave.
Penalties and Enforcement:
Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the Act’s penalties and enforcement provisions. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or childcare provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act.
The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts “reasonably” and “in good faith” when all of the following facts are present:
1. The employer remedies any violations, including by making all affected employees whole as soon as practicable;
2. The violations of the Act were not “willful”; and
3. The Department receives a written commitment from the employer to comply with the Act in the future.
Pre-Existing Leave:
If an employee is eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by an employer, the employee must choose between pre-existing entitlements and the FFCRA leave unless the employer agrees otherwise. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from an employer’s paid leave policy to supplement the amount the employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. However, an employer is not required to permit an employee to use existing paid leave to supplement the amount an employee receives from paid sick leave or expanded family and medical leave.
Benefits:
If an employer provides group health coverage that an employee has elected, that employee is entitled to the continued group health coverage during the expanded family and medical leave on the same terms as if the employee continued to work. If the employee is enrolled in family coverage, an employer must maintain coverage during the expanded family and medical leave. An employee generally must continue to make any normal contributions to the cost of the health coverage.
Furlough:
If an employer furloughs employees because it does not have enough work or business, an employee is not entitled to take paid sick leave or expanded family and medical leave. However, the employee may be eligible for unemployment insurance benefits. If an employer closes a worksite, even for a short period of time, an employee is not entitled to take paid sick leave or expanded family and medical leave. However, an employee may be eligible for unemployment insurance benefits.
UNEMPLOYMENT
The Employment and Training Administration announced new guidance outlining state flexibilities in administering their unemployment insurance programs to assist Americans affected by the COVID-19 outbreak. Under the guidance, federal law permits significant flexibility for states to amend their laws to provide unemployment insurance benefits in multiple scenarios related to COVID-19.
In Pennsylvania an employee may be eligible for unemployment if: 1) the employer temporarily closes or goes out of business because of COVID-19; 2) the employer reduces an employee’s hours because of COVID-19; 3) an employee is told not to work because the employer feels the employee might get or spread COVID-19; and 4) an employee is told to quarantine or self-isolate, or live/work in a county under government-recommended mitigation efforts.
In New Jersey, applications for benefits should not be filed if the employee continues to be paid by the employer during COVID-19. However,
New Jersey’s Earned Sick Leave Law even covers public health emergencies – employees can use Earned Sick leave if their workplace or child’s school or daycare is closed due to an epidemic, or if a public health authority determines the need for a quarantine. Earned Sick Leave can be used for self-care, or for a person to care for a family member, which includes a child, grandchild, sibling, spouse, parent or grandparent, domestic or civil union partner, anyone related by blood to the employee, or anyone whose close association with the employee is the equivalent of family. The scenarios below are for state benefits (i.e., earned sick leave, workers’ compensation, unemployment insurance benefits, etc.) and protections:
- A person who has COVID-19 or symptoms of COVID-19;
- A person who was exposed to coronavirus during the course of their work and has now been told to self-quarantine;
- A person who is unable to work because their child’s school or daycare was ordered closed by a public official for a public health reasons;
- A person who is out of work because their employer voluntarily closed (temporarily or otherwise) because of COVID-19;
- A person who is unable to work because their place of business was ordered closed by a Public official for a public health reason;
- A person who refuses to go to work because although their place of business was ordered closed by a public official for a public health reason, it remains open in defiance of that directive;
- A person who is losing hours because of a reduction in force related to COVID-19;
- A person who does not go to work because her healthcare providers says she is at a greater risk due to a pre-existing health condition;
- A person who is told to self-quarantine due to virus exposure outside of the workplace; and
- A person who has to care for a relative or loved one with the coronavirus or symptoms of COVID-19.
