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FAMILIES FIRST C19 RESPONSE ACT: EMERGENCY SICK AND FAMILY LEAVE

Posted by Stephen B. Rotter | Apr 10, 2020 | 0 Comments

1. What is the Families First Coronavirus Response Act (FFCRA)?

The FFCRA is 112-pages in total. Among other things, it obligates certain employers to provide leave under its paid sick leave provisions (Emergency Sick Leave) and its Family Medical Leave Act amendments (Emergency Family Leave).

2. When do employers have to comply with the FFCRA?

The FFCRA was passed by Congress and signed into law on March 18, 2020. It is effective on April 2, 2020 and continues through December 31, 2020. Thus, employers must comply with the FFCRA by April 2, 2020.

3. What employers must comply with the FFCRA?

Private employers with less than 500 employees (and some governmental entities) are covered under the FFCRA. Healthcare providers, emergency responders and companies with less than 50 employees (who are having viability issues) may be exempted by forthcoming regulations from the U.S. Department of Labor. The law also allows employers to exclude employees who are health care providers or emergency responders.

Emergency Sick Leave Requirements

4. How much Emergency Sick Leave must be provided and for what reasons?

For full-time employees, employers must provide 80 hours of paid sick leave. For part-time employees, employers must provide the average number of hours worked by the employee during a two-week period. Emergency Sick Leave must be provided if an employee is:

a. Under governmental or healthcare provider orders to quarantine;

b. Experiencing C19ˢᵐ symptoms and seeking a medical diagnosis;

c. Caring for an individual meeting categories a or b above;

d. Caring for a child whose school is closed or child care provider is unavailable, both due to C19ˢᵐ; or

e. Suffering a substantially similar qualifying condition specified by the Department of Health and Human Services.

5. Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for Emergency Sick Leave?

No, Emergency Sick Leave must be available immediately regardless of how long the employee has been employed.

6. How is Emergency Sick Leave paid?

Employees must be paid their regular rate of pay or applicable minimum wage (whichever is greater) if taking leave for themselves, with a cap of $511/day and $5,110 total. Employees caring for family members must be paid an amount equal to 2/3 of their regular rate of pay or applicable minimum wage (whichever is greater), with a cap of $200/day and $2,000 total.

7. Can employers require employees to provide reasonable notice of the need to take Emergency Sick Leave?

For the first day of Emergency Sick Leave, no. However, after the first day of Emergency Sick Leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time.

8. Do employers have to pay out unused Emergency Sick Leave upon termination of employment?

No, Emergency Sick Leave does not carry over from year to year and it is not required to be paid out upon separation from employment.

9. Are there any required employer notices?

Yes, employers are required to post an Emergency Sick Leave notice in a conspicuous place, such as a break room. A model notice will be issued by the U.S. Department of Labor on or before March 25, 2020.

10. If an employer already provides a generous paid time off policy with paid leave exceeding the requirements for Emergency Sick Leave, do they still have to provide Emergency Sick Leave?

Yes, employers with generous PTO policies still must provide the additional Emergency Sick Leave. Employers also cannot require employees to use other paid leave before providing Emergency Sick Leave.

11. Can an employer require an employee to find a replacement before allowing the employee to take Emergency Sick Leave?

No, an employer may not require an employee to find a replacement employee during the time period in which the employee is taking Emergency Sick Leave. Employers also cannot discharge, discipline or discriminate against employees for requesting, taking or complaining about Emergency Sick Leave.

12. What else do employers need to be aware of regarding Emergency Sick Leave?

Employers are not subject to the 6.2% social security payroll tax for Emergency Sick Leave wages. Employers also can claim a tax credit on a quarterly basis equal to 100% of the Emergency Sick Leave wages paid.

Emergency Family Leave Requirements

13. How much Emergency Family Leave must be provided and for what reasons?

Covered employers must provide up to 12 weeks of Emergency Family Leave for an employee who is unable to work or telework because his or her child's school is closed or daycare provider is unavailable, both due to a “public health emergency” such as C19ˢᵐ.

14. Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for Emergency Family Leave?

Yes, employees must be employed for at least 30 calendar days, although no minimum number of hours worked is required. Full-time, part-time and temporary employees are thus eligible for Emergency Family Leave.

15. How is Emergency Family Leave paid?

The first 10 days of Emergency Family Leave may be unpaid, but the employee can elect to use accrued paid time off (e.g., vacation, personal, sick, etc.). The employee may also utilize Emergency Paid Sick Leave (caring for a family member) for the first 10 days of leave, as described above. After the first 10 days, the employer is required to provide paid leave for the remaining leave of up to 12 weeks in an amount equal to at least 2/3 of an employee's regular's rate of pay, with a cap of $200/day and $10,000 total.

16. Can employers require employees to provide reasonable notice of the need to take Emergency Family Leave?

Yes, but only where the need for leave is foreseeable.

17. Is job restoration required for employees returning from Emergency Family Leave?

Yes, employees are generally entitled to be restored to their position or an equivalent one upon returning from leave. However, if an employer has less than 25 employees, the employer does not have to return the employee to their same or similar position if: a) the position was eliminated due to economic or operating conditions caused by C19ˢᵐ; b) the employer made reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced; and c) the employer makes reasonable efforts within the 1 year period following the employee's 12-week leave period to contact the employee if an equivalent position becomes available.

18. What else do employers need to be aware of regarding Emergency Family Leave?

Employers are not subject to the 6.2% social security payroll tax for Emergency Family Leave wages. Employers can also claim a tax credit on a quarterly basis equal to 100% of the Emergency Family Leave wages paid.

Note: This guidance does not provide information directly related to FFCRA tax issues for employers or employees. Please consult your tax advisor for such information.

Questions, concerns, or additional guidance?

Contact Stephen Rotter or Jennifer Gokenbach

The Workplace Counsel

303.625.6400

[email protected]

[email protected]

www.theworkplacecounsel.com

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