By Jonathan Udell, Cannabis and Litigation Attorney at Rose Law Group
The Families First Coronavirus Response Act (“FFCRA”) contains two relevant acts that affect employers, (1) the Emergency Family and Medical Leave Expansion Act and (2) the Emergency Paid Sick Leave Act. H.R. 6201, available at https://www.congress.gov/bill/116th-congress/house-bill/6201.
Division C—Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act of 1993. FFCRA, §§ 3101-3106. First, it adds a new qualifying condition for taking leave, namely, “a qualifying need related to a public health emergency” concerning COVID-19. FFCRA, § 3102. For COVID-19, paid leave is generally required. FFCRA, § 3102(a)(2); 29 U.S.C. § 2612(c).
For purposes of the provisions concerning COVID-19:
An “eligible employee” is someone who has been employed for at least 30 calendar days – FFCRA, Section 3102 (setting out new Section 110 to Family and Medical Leave Act of 1993) (Section 110(a)(1)(A))
An employer is affected if it employs fewer than 500 employees – (Section 110(a)(1)(B)
The Secretary of Labor may issue an order exempting employers with fewer than 50 employees – (Section 110(a)(3)(B))
The provisions are only triggered if an “employee is unable to work (or telework) due to a need for leave to care for [their child] under 18 years of age . . . if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency” – (Section 110(a)(2)(A))
Paid vs. Unpaid Leave
First ten days “may consist of unpaid leave” – (Section 110(b)(1)(A))
After ten days, the employer must provide (1) payment at a rate of 2/3 the employee’s usual rate of pay for (2) the number of hours the employee would normally be scheduled to work – (Section 110(b)(2)(B)(i)(I))
But “[i]n no event shall such paid leave exceed $200 per day and $10,000 in the aggregate – (Section 110(b)(2)(B)(ii))
The leave may last up to twelve weeks – 29 U.S.C. Section 2612(a)(1)
Restoration to position
Employers with fewer than 25 employees are not always required to restore employees to their position or a substantially similar one – FFCRA, § 3102(d)
Division E—Emergency Paid Sick Leave Act
Who gets paid sick leave? Any employee who:
“[I]is subject to a Federal, State, or local quarantine or isolation order related to COVID-19” – FFCRA, § 5102(a)(1)
“[H]as been advised by a health care provider to self-quarantine due to concerns related to COVID-19” – FFCRA, § 5102(a)(2)
“[I]s experiencing symptoms of COVID-19 and seeking a medical diagnosis – FFCRA, § 5102(a)(3)
“[I]s caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2)” – FFCRA, § 5102(a)(4)
“[I]s caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions” – FFCRA, § 5102(a)(5)
“[I]s experiencing any other substantially similar condition specified by the Secretary of health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor” – FFCRA, § 5102(a)(6)
Duration of Paid Sick Time: Two Weeks – FFCRA, § 5102(b)(2)
For part-time workers, the amount of hours they usually work over two weeks – FFCRA, § 5102(b)(2)(B)
When the need for paid leave disappears, the right to paid leave also disappears – FFCRA, § 5102(c)
Employers may not require employees to search for replacement workers – FFCRA, § 5102(d)
Leave is available regardless of how long an employee has worked for an employer – FFCRA, § 5102(e)(1)
Employer cannot require employees to first use other forms of paid leave provided by the employer – FFCRA, § 5102(e)(2)(B)
The employer must post a notice in conspicuous places informing employees of their rights – FFCRA, § 5103(a)
The Secretary of Labor will post a sample notice by March 25, 2020 – FFCRA, § 5103(b)
Violations are punishable under the Fair Labor Standards Act – FFCRA, § 5105
Who Is Covered?
Private-sector employees and many public employees – FFCRA, § 5110(1)
What Employers Owe Obligations?
Only “covered employers,” who employ fewer than 500 employees – FFCRA, § 5110(2)
How much paid sick time?
General amount: The employer’s regular rate of pay – FFCRA, § 5110(5)
But, in no event shall paid sick time exceed:
$511 per day and $5,110 in the aggregate for the first three conditions justifying leave (quarantine orders and symptoms), or
$200 per day and $2,000 in the aggregate for the latter three conditions (caring for others or substantially similar conditions) – Id.
Note: This Act does not apply to health care or emergency workers, FFCRA, § 5102(a), and tax credits will be available to offset employer costs, FFCRA, Division G
