By: Marc Furman, Jonathan Landesman, and Marc B. Cytryn
During this unprecedented crisis, the rules for employers are changing every day as federal, state, and local lawmakers issue new regulations, restrictions, and reporting requirements. To help employers navigate the maze of employment laws that are implicated by coronavirus, below is an overview of the paid FMLA and paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA).
FFCRA was signed into law by President Trump on the evening of March 18, 2020. It becomes effective on April 1, 2020, and is currently scheduled to remain in place until December 31, 2020. The law does not apply to employers with 500 or more employees. In addition, this new law authorizes the Department of Labor (DOL) to exempt employers with less than 50 employees from the paid leave requirements if doing so would jeopardize the viability of the business. FFCRA also provides covered employers with a dollar-for-dollar tax credit (not a deduction) for benefits paid.
There are two parts to FFCRA. First, the law requires covered employers to provide up to eighty hours (two weeks) of paid sick leave for a total of six different reasons. The amount of pay that employees receive depends upon the specific reason why they require time off from work. For the three reasons listed below, sick leave is paid at the employee’s regular rate of pay up to a cap of $511 per day and $5,110 in the aggregate over a two-week period:
- The employee is subject to a federal, state, or local quarantine or isolation order
- The employee has been advised by a health care provider to self-quarantine
- The employee is experiencing coronavirus symptoms and is seeking a medical diagnosis
On the other hand, sick leave taken for the following three reasons is paid at 2/3 of the employee’s regular rate of pay up to a cap of $200 per day and $2,000 in the aggregate over a two-week period:
- The employee is caring for an individual who is quarantined by order of the government or a doctor
- The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to coronavirus
- The employee is experiencing any other substantially similar condition, as specified by the Secretary of Health and Human Services
Second, the FFCRA requires that covered employers provide twelve weeks of family leave to employees who have been employed for at least 30 days, only where an employee is caring for a son or daughter whose school or daycare has been closed due to coronavirus. Employees who take family leave, for this reason, are entitled to 2/3 of their regular rate of pay up to a cap of $200 per day and $12,000 in the aggregate over a twelve-week period (i.e., two weeks of paid sick leave followed by up to ten weeks of paid expanded family and medical leave). Notably, employers with 25 or fewer employees do not have to restore an employee from leave if the employee’s job has been eliminated due to economic necessity.
The DOL’s Wage & Hour Division announced that it expects to issue proposed regulations in April 2020, which will provide additional guidance. Cohen Seglias attorneys will continue to monitor and provide updates on the government’s regulations and guidance.
If you have any concerns about the impact of the coronavirus pandemic on your business or compliance with FFCRA, please contact the Labor & Employment Group or the Cohen Seglias attorney with whom you work.