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In an continuing effort to keep you apprised of legal developments during this trying time, below is our analysis of the
Families First Coronavirus Response Act, enacted by the federal government late yesterday.
We will continue to monitor and keep you apprised of legal developments and emerging issues during this very difficult time.
In the meantime, if you should have any questions about the FFCRA, or issues related to the impact of the COVID-19 pandemic in the workplace,
please do not hesitate to reach out to one of our attorneys.
To: All Willig, Williams & Davidson Clients
March 19, 2020
RE: U.S. Families First Coronavirus Response Act (File No: 001900-010)
INTRODUCTION
On March 18, 2020, the U. S. Congress passed the Families First Coronavirus Response Act (FFCRA). The President signed the measure into law the same day. The law goes into effect on April 2, 2020. This law includes numerous emergency measures to combat the ongoing COVID-19 pandemic, including important changes to Unemployment Insurance and establishes paid sick leave where certain conditions are met. The law also expands eligibility for paid family leave to care for healthy children in certain narrow circumstances. While not perfect, this is the first time the United States has had federal legislation mandating paid sick and family leave. This memo explains these features of the law. Note: the paid sick leave and family leave portions of this law do not apply to private employers with 500 or more employees. At this time, this legislation will sunset on December 31, 2020.
I. Paid Sick Leave
Under the FFCRA, all public employers and private employers with fewer than 500 total employees are required to provide 80 hours of paid sick leave under the Act to full-time employees, while part time employees are entitled to the average number of hours they work over a two-week period. Paid sick leave can be used for one of the following needs: (1) the employee is subject to a Federal, state or local quarantine; (2) the employee has been advised by a health care professional 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 isolation order or self-quarantine; (5) the employee is caring for a son or daughter whose school or place of care has been closed due to COVID-19 precautions*; and/or (6) a similar reason as determined by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
The legislation provides that paid sick leave will be available for employee use immediately, regardless of how long the employee has been employed. An employer that is subject to this section of the Act may not require an employee use other leave before paid sick leave, including vacation leave or existing paid sick leave. If the employee is subject to quarantine, self-quarantine or is experiencing COVID-19 symptoms, the employee must be compensated at her or his regular rate of pay, but no more than $511/day or $5,110 in total. If taking paid sick leave for any other reason, the compensation is 2/3 of her or his daily rate but not to exceed $200/day or $2,000 in total. For example, if a parent is staying home to take care of a child who is experiencing symptoms of COVID-19, they will receive their regular daily rate of pay up to $511 for 10 days. In contrast, if a parent is unable to work because they need to care for their otherwise healthy child, they will receive 2/3 of their pay up to $200/day. Additionally, a waiver of this provision may be granted to a private employer with fewer than 50 employees.
The law prohibits retaliation against an employee for utilizing their paid sick leave benefits. Additionally, an employer may not require an employee find a replacement worker as a condition of using paid family leave.
II. Emergency Family Leave
The FFCRA states that an individual is eligible for paid family leave if the employee has worked for the employer for at least thirty calendar days and is unable to work, or telework, due to the need to care for a child under the age of 18 whose school or place of care has closed due to the coronavirus. This is the sole reason one may take paid family leave. Employers with under 50 employees may apply for a hardship waiver.
Paid family leave activates if the required leave is greater than 10 days, and will be available up to 12 weeks. The first 10 days of family leave are unpaid under this section of the Act, however, the first 10 days would be compensated under the paid sick leave portion. An employee is to be compensated at 2/3 of her or his regular rate of pay not to exceed $200/day or $10,000 in the aggregate. For example: an employee is not eligible for paid family leave if they test positive for COVID-19, but can receive the benefit if they need to stay home to care for a child whose school has closed.
Employers with fewer than 25 employees do not have to restore an employee to a position if operating conditions change and positions are eliminated as a result of the public health emergency during the period of leave. These employers must make reasonable efforts to restore the employee to the position for a period of one year following the end of the public health emergency or 12 weeks after the employee takes leave, whichever is earlier. This provision does not apply to the paid sick leave portion of the Act.
III. Exceptions
Some classifications of employees may be exempt from the paid sick leave and expanded FMLA leave in the Act. Health care providers and emergency responders may be excluded from these new protections from the Act. The Secretary of Labor has the authority to issue regulations to clarify what type of work would fall into these categories, but no regulations have been promulgated at this time.
IV. Unemployment Insurance
The FFCRA provides for additional funds of $1 billion from the federal government to assist states in managing unemployment benefits. Half of the funding immediately goes to states to manage their programs and the other half is for emergency grants if the state sees an increase of at least 10% in unemployment claims.
The FFCRA also permits states to relax the federal program conformity rules surrounding a typical unemployment claim, such as requirements that beneficiaries seek work, quit only for good cause and the waiting week requirement. The law encourages states to broaden access to unemployment insurance during the crisis.
Pennsylvania has already taken action in relaxing these requirements.** Additionally, the law provides full federal funding where unemployment insurance normally provides half federal funding.
* This is the only reason an employee can take paid family leave. The first 10 days of absence are covered under paid sick leave, and any further absence would be covered under paid family leave.
** These changes are available HERE.
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