The Department of Labor has issued a model notice, which employers are required to post to inform employees of their rights under the FFCRA. See Model Notice.
The FFCRA includes two separate Acts – the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
Emergency Paid Sick Leave
The Emergency Paid Sick Leave Act requires private sector (and certain public) employers with fewer than 500 employees to provide employees:
• Two weeks (up to 80 hours) of paid sick leave for a full-time employee at the employee’s regular rate of pay, up to a maximum of $511 per day, where the employee is unable to work or telework because the employee is quarantined under Federal, State, or local government order due to COVID-19, has been advised by a health care provider to self-quarantine due to COVID-19 related concerns, and/or is experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave for a full-time employee at two-thirds (2/3) the employee’s regular rate of pay, up to $200 per day, because the employee is unable to work or telework because of a bona fide need to care for an individual subject to quarantine under 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.
For part-time employees, they are entitled to the typical number of hours that they work in a typical two week period.
Employers may not require an employee to use existing paid leave to cover this time. This leave applies to all current employees, regardless of the length of time the employee has been employed. Employers will be reimbursed for these payments through payroll tax credits.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act. Under the amendments, private sector (and some public) employees with fewer than 500 employees are required to provide employees who have been employed for at least 30 days with up to 12 weeks of job-protected leave if they are unable to work or telework 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.
The first 10 days of leave under the Emergency Family and Medical Leave Expansion Act are unpaid, but employees may use paid leave under the Emergency Paid Sick Leave Act or accrued vacation or paid time off (PTO) under their employer’s policy (at the employee’s choice). Employees taking leave for this reason are entitled to pay at two-thirds (2/3) of their regular rate or two-thirds (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). All other leave under the FMLA remains unpaid. To the extent you have already used FMLA leave in the relevant 12-month period for other FMLA-qualifying reasons, you will not have the full 12 weeks available to you.
Companies that employ 25 or more employees are generally required to return employees to the same or substantially equivalent position (if your company experienced a lay-off due to COVID-19, lack of work or other reasons, you will not be entitled to reinstatement). Employers with fewer than 25 employees are not required to return the employee to work if (a) the position held by the employee when the employee no longer exists due to changes in the economic or operational conditions, (b) the company makes reasonable efforts to restore the employee to an equivalent position, salary and benefits, and, if the efforts do not result in the employee being returned to his/her position, the employer made reasonable efforts to contact the employee about equivalent positions and continues to do so for one year after the employee’s COVID-19 related leave ends.
Health Care Providers/Emergency Responders/Small Businesses
Employees of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act.
Small businesses with fewer than 50 employees may qualify for 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. The Department of Labor anticipates issuing FFCRA regulations addressing this issue in April 2020. The Department of Labor’s limited, current guidance provides that a small business may claim this exemption if the provision of paid leave would result in the business’ expenses and financial obligations exceeding available business revenue and cease operating at minimal capacity; or the absence of the employees requesting leave would involve a substantial risk to the financial health or operational capabilities of the business due to the employees’ skills, knowledge or responsibilities; or there are not any remaining, sufficient workers for the business to operate at minimal capacity.
Covered employers will qualify for reimbursement through tax credits for all qualifying wages, and health care coverage costs, paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the FFCRA for a qualifying reason, up to the applicable per diem payment caps.
Where leave is foreseeable, 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 will be required to have some supporting information available in order to claim tax credits for payments made under these acts. The U.S. Department of Treasury will issue guidance on the process for obtaining tax credits.