Thursday, March 19, 2020
Families First Coronavirus Response Act Signed

Provisions Go Into Effect April 2nd
On Wednesday, March 18, 2020, the U.S. Senate approved H.R. 6201, the Families First Coronavirus Response Act (FFCRA), and President Donald Trump signed the bill into law.

The final version of the law contains significant revisions to the draft bill we reported on earlier this week.

The FFCRA, as passed, includes two provisions regarding paid leave: 1) the Emergency Family and Medical Leave Expansion Act; and 2) the Emergency Paid Sick Leave Act. Both provisions will go into effect Thursday, April 2, 2020 (15 days after signing the bill). They expire on December 31, 2020. 

Emergency Family and Medical Leave Expansion Act:
  • As we previously reported, this is an expansion of the Family Medical Leave Act (FMLA) that covers employers with 500 or fewer employees, and employees who have been employed by the employer for at least 30 calendar days. Thus, these provisions cover employers who are not normally covered by the FMLA in the limited circumstances described below.

  • The final bill provides paid leave only when an “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or if the child care provider of such son or daughter is unavailable, due to a public health emergency.” This is a significant departure from the bill the U.S. House of Representatives passed earlier this week which included several other qualifying reasons.

  • For employees who qualify under this reason, the law provides up to 12 weeks of leave, the first 10 days of which are unpaid. An employee may elect to use paid leave during the first 10 days, but an employer cannot require an employee to do so. After the first 10 days, the remaining period must be paid at two-thirds of the employee’s regular rate. 

  • Note: Although an employee who is unable to work for an extended period of time due to being ill, or caring for an immediate family member, with the coronavirus or complications therefrom would not be eligible for paid leave under these provisions, they may be eligible for unpaid leave under the FMLA’s standard provisions. 

  • Paid leave is capped at $200 per day per employee, not to exceed $10,000 in the aggregate.

  • The FMLA’s usual requirement that an employee be restored to the same or equivalent position after leave does not apply to employers with fewer than 25 employees if the employee’s position no longer exists as a result of economic conditions or other changes in the employer’s operations caused by the public health crisis during the period of leave. Employers with fewer than 25 employees must still make reasonable efforts to restore employees to the same or equivalent positions, and if those reasonable efforts fail, must make efforts to contact and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of: a) the date on which the qualifying need related to a public health emergency concludes, or b) the date that is 12 weeks after the date the employee’s leave started.

  • Importantly, the final version states that employers of healthcare providers and emergency responders may exclude such employees from the expanded FMLA provisions. Thus, employers of healthcare providers and emergency responders are not required to provide expanded FMLA coverage for those employees. 

  • The term “healthcare provider” includes the following: a doctor of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated to exist by x-ray), nurse practitioners, nurse midwives, clinical social workers, and physician assistants.

  • The final version also gives the Secretary of Labor authority to issue regulations to exempt small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” While employers of healthcare providers and emergency responders can exempt those employees outright, small businesses would need to apply for an exemption or waiver from the Secretary of Labor.
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Emergency Paid Sick Leave Act

This provision provides full time employees eighty hours of paid sick time at their regular rate of pay and part time employees the equivalent of two weeks’ worth of hours at their regular rate of pay for the following reasons:
 

  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 to isolate by Federal, State, or local authorities or on recommendation of a health care provider.
  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.
  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 Treasury and the Secretary of Labor.

  • Employees who take emergency sick leave for reasons (1), (2), or (3), must be compensated at their regular rate, with a cap of $511 per day, and $5,110 in the aggregate. Employees who take emergency sick leave for reasons (4), (5), or (6) above, must be compensated at two-thirds their regular rate, with a cap of $200 per day and $2,000 in the aggregate.

  • As above, employers of health care providers and emergency responders may exempt such employees from the paid leave provisions.

  • Employees may take emergency paid sick leave for any of the reasons described above regardless of their tenure with the company. Employers must allow employees to take the emergency paid sick leave under this provision before taking any other paid leave the employer may provide. Further, employers are prohibited from amending their paid leave policies to avoid paying leave in addition to emergency paid sick leave.

  • Employers CANNOT discharge, discipline, or otherwise discriminate against employees who are eligible for, may become eligible for, request, or take emergency paid sick or who complain regarding emergency paid sick leave. Employers who violate these provisions may be penalized according to the Fair Labor Standards Act as though they failed to pay minimum wage. 

  • The Secretary of Labor is charged with producing a notice outlining employee rights under this provision, which all covered employers will be required to post. We will forward this posting once the Secretary of Labor produces it.

Employers who pay employees for paid leave under either provision will be eligible for tax credits for 100 percent of qualified paid leave wages against their Social Security payroll taxes. The caps on tax credits mirror the caps for employees on paid leave. Under the Emergency Family and Medical Leave Expansion Act the tax credit cap will be $200 per day per employee. Leave under the Emergency Paid Sick Leave Act will be capped at $511 per date for employees who personally sick or quarantined (reasons (1), (2), and (3)), or $200 per day for employees taking leave to care for others (reasons (4), (5), and (6)).
Next Steps

The White House and many members of Congress have expressed concerns over the burden that new paid leave obligations will place on small businesses. The Senate is now turning to another phase of legislation to address that burden. The Treasury Department issued a proposal on Wednesday, March 18, 2020, which would provide loans to cover 100 percent of payroll for six weeks with a cap of $1,540 per week per employee.

Gov. Announced Local Economic Aid To Businesses

Locally, Governor Asa Hutchinson announced three different forms of economic aid that are or will be available to assist employers:

$12 million in community development block grant funding.  This is money from a program administered by the U.S. Department of Housing and Urban Development (HUD). The governor stated that the first priority for these funds will be for businesses such as hospitals and other healthcare facilities, as well as other businesses engaged in areas necessary to help combat the COVID-19 public health emergency. These funds will be allocated with guidance from HUD.
 
$4 million for a bridge loan program.  The governor stated these funds will be targeted to mid-sized companies to make payments and provide working capital to help these businesses remain viable. Companies may be eligible for up to $250,000 under this program.
 
SBA Economic Injury Disaster Loans.  The governor has declared a state of emergency for Arkansas small businesses and has sent correspondence to the Small Business Administration (SBA) requesting funds under its Economic Injury Disaster Loan Program. The governor hopes to receive correspondence back from the SBA by the end of the week. If approved by the SBA, this will make low-interest loans available to small businesses and private, non-profit organizations to help alleviate economic injury caused by COVID-19. These loans offer up to $2 million in assistance and may be used to pay fixed debts, payroll, accounts payable, and other bills. The interest rate on these loans is 3.75 percent for small businesses and 2.75 percent for non-profits, and the loans offer long-term repayments, up to a maximum of 30 years.
EEOC and DOL Provide Needed Guidance
The EEOC and the Department of Labor have posted recent guidance for employers related to COVID-19. Here are key takeaways for employers.
Note: This guidance does not take into account the impact that the FFCRA
(see above) will have on employers. 
Treatment of Employees and Job Applicants

The EEOC recently announced that although the Americans with Disabilities Act (ADA) and the Rehabilitation Act continue to apply, they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about steps employers should take regarding COVID-19 .

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How much information may an employer request from an employee who calls in sick?

During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus (e.g., fever, chills, cough, shortness of breath, or sore throat). Employers must maintain all information about employee illness as a confidential medical record.

When may an employer take the body temperature of employees during the COVID-19 pandemic?

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees' body temperature. But employers should be aware that some people with COVID-19 do not have a fever.

May employers require employees to stay home if they have symptoms of COVID-19?  

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace, and the ADA does not interfere with employers following this advice.

When employees return to work, may employers require doctors' notes certifying their fitness for duty? 

Yes. As a practical matter, however, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide formal fitness-for-duty documentation, so alternative approaches (e.g., forms or emails) may be necessary.

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job

May an employer delay the start date of an applicant   who has COVID-19 or symptoms associated with it? 

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. 

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.


Leave Issues

The Wage and Hour Division of the Department of Labor has provided the following guidance for employers related to the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act in the wake of the COVID-19 pandemic. 







 
Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick under FMLA?

An employee who is sick with the virus or whose family members are sick with the virus may be entitled to leave under the FMLA where complications arise that create a “serious health condition.” Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. The DOL therefore encourages employers to consider flexible leave policies for their employees.

Can an employee stay home under FMLA leave to avoid getting pandemic influenza?

No. Leave taken by an employee for the purpose of avoiding exposure to the flu is not protected under the FMLA. 

May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes. But employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?

Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu. 
Wage and Hour Issues
  
When is an employer obligated to pay employees who are not working or who are working from home?

Hourly employees must be paid only for the hours actually worked. Exempt, salaried employees generally must receive their full salary in any week in which they perform any work. These rules apply whether the work is performed at home or in the employer’s office.
 
Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?

Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. 
Allison Pearson  is an associate in the Labor and Employment Practice Group. Allison advises employers in all aspects of labor and employment laws including compliance with Title VII of the Civil Rights Act of 1964, the Family Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety and Health Act.  

Wayne Young  is a partner with the firm and a member of the Labor and Employment Law Practice Group. His practice focuses on employment and labor law including discrimination matters, harassment, wage and hour compliance, family and medical leave and covenants not to compete. He advises his clients in these matters from the compliance stage, to defending government investigations and litigation if necessary.

Katherine C. Campbell  is an associate in the Litigation Practice Group at Friday, Eldredge & Clark. She serves as litigation counsel for individuals and businesses in complex business and commercial disputes including employment claims, collective action wage and hour claims, and breach of contract matters. 

Disclaimer:  The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.
Labor and Employment Practice Group
Employers today are facing an ever-changing legal landscape. Our Labor and Employment attorneys take a proactive approach to assist clients in the   development and implementation of effective strategies to meet these specific needs.

With an eye toward avoiding conflicts before they arise, we can guide you through new developments in the law, provide you with options and help you make informed decisions. In those instances where litigation is necessary, our attorneys are prepared to represent you in state or federal court, before regulatory agencies and other tribunals. It is our commitment to provide exceptional client service, value-added legal advice and cost-effective representation concerning all aspects of your employment-related legal matters. 
About the Firm

Friday, Eldredge & Clark, LLP is a full-service law firm representing businesses, non-profits, governmental and individual clients in Arkansas and across the United States. We are the largest law firm in Arkansas and one of the oldest — tracing our historical roots back almost 150 years. Our success stems from strong internal leadership and a continuously sharp focus on our clients' needs. We provide clients single-source convenience by offering a wide range of services in more than 50 areas of law. Although the firm is known for its rich history and vast scope of services, it is committed to further growth and development to serve our clients better and put them at the focus of our work - every day.