How Will The Families First Coronavirus Response Act (FFCRA) Help Employees?

The coronavirus pandemic, sometimes referred to as COVID-19, has created a lot of uncertainty and concern for all of us and our families. You may be wondering how the virus will affect your employment and what rights you have if you cannot work because you or a family member becomes infected, or if you are laid off or even terminated by your employer. Fortunately, federal legislation was passed that may help during these difficult times.

The Families First Coronavirus Response Act (FFCRA) is now law. It became effective on April 1, 2020, and is designed to provide some relief to employees who work for any size company with up to 500 employees. The FFCRA has two laws that will help employees – the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).

The Emergency Paid Sick Leave Act helps by providing short-term paid sick leave to employees under certain circumstances, subject to caps on the amount of wages paid. The Emergency Family and Medical Leave Expansion Act amends the existing unpaid Family and Medical Leave Act to provide paid leave after a 10 day waiting period.

THE EMERGENCY PAID SICK LEAVE ACT (EPSLA)

How Do I Know If My Company Is Covered?

Under the Emergency Paid Sick Leave Act (“EPSLA”), all full-time and part-time employees who work for companies with less than 500 employees are immediately eligible for paid leave with no minimum period of employment. However, the Department of Labor has the authority to make an exception to the paid leave requirement for companies with less than 50 employees, if providing it would jeopardize the viability of the business as a going concern.

How Do I Know If I Am Covered?

There are six ways that a person can be covered under the new legislation:

1. An employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

2. An employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

3. An employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;

4. An employee is caring for an individual who is subject to a federal, state, or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19;

5. An employee is caring for the employee’s son or daughter because the child’s school or childcare facility has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or,

6. The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.

How Long Can I Take For Emergency Paid Sick Leave?

Full-time employees are entitled to 80 hours of paid leave. Part-time employees are entitled to be paid for the number of hours per day they worked on average over the prior two-week period.

How Much Pay Will I Receive On Emergency Paid Sick Leave?

Regular Rate Of Pay – Employees will be paid at their regular rate of pay (subject to a limit of $511 per day and $5,110 total) if Leave is taken for any of the following reasons:

1. The employee is subject to a federal, state, or local quarantine or isolation order;

2. The employee has been advised by a health care provider to self-quarantine; or

3. The employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis.

Two-Thirds of Regular Rate Of Pay – Employees will be paid at two-thirds of their regular rate of pay (subject to a limit of $200 per day and $2,000 total) if Leave is taken because:

1. The employee is caring for a person who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;

2. The employee is caring for a son or daughter of the employee whose school or daycare is closed; or

3. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (EFMLEA)

How Do I Know If My Company Is Covered?

Under this new provision, all employers with fewer than 500 employees are covered. Unlike the Family Medical Leave Act (“FMLA”), having 50 or more employees within a 75-mile radius is not required.

How Do I Know If I Am Covered?

Employees must work for an employer for at least 30 calendar days.

When Can I Take Leave An EFMLEA Leave?

Leave is available when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 or when the child’s school or daycare is closed due to the coronavirus.

Will I Be Paid While On EFMLEA Leave?

• There is a 10 day waiting period and during this time, EFMLEA leave is unpaid. After 10 days, the remainder of the leave is paid.
• An employee can elect to use his or her existing paid leave (like vacation days or PTO) concurrently with the 10-day unpaid leave period, but the employer cannot require this.
• If an employee qualifies for both EFMLEA and Emergency Paid Sick Leave discussed above, the employee may use Emergency Paid Sick Leave at the same time as the 10 day EFMLEA waiting period, which is normally unpaid.
• After the 10-day unpaid waiting period ends, an employee will be paid two-thirds of his or her regular rate of pay, multiplied by the number of hours the employee would normally work. If the number of hours is unpredictable, an employer may look at the prior six-month period to determine the average number of hours worked per week prior to the leave.
• Paid leave under the EFMLEA will be a maximum of $200 per day and $10,000 in total for the duration of the leave. After the $10,000 maximum is reached, the remainder of the leave, up to 12 weeks, is unpaid.

Will I Still Have My Job After My EFMLEA Leave Ends?

Just like the regular Family Medical Leave Act, an employer will be required to return an employee to work at the end of the leave. The only exception to this requirement is for employers with fewer than 25 employees under the following conditions:

• The employee’s position no longer exists because of economic or operating conditions caused by the public health emergency; and
• The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and terms and conditions of employment for a one-year period. “Reasonable efforts” include the duty to contact the employee when an equivalent position becomes available over this one-year period.

The Department of Labor will be publishing a poster with information about the new Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion Acts, which employers will be required to post in the workplace. Employers may also provide guidelines and issue policies notifying employees of the availability of the new leaves and how to request them. For now, employers may have an employee provide his or her own written statement about the reason for leave and for whom he or she is caring during the leave, if applicable. After the first day of leave, an employer can require an employee to follow reasonable notice procedures to continue receiving paid sick time.

The Team at Marshall Forman & Schlein Wants to Help

Please call one of our experienced employment attorneys or contact us online today to discuss concerns you may have about your employment and the coronavirus.

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