Update: Summary of the Families First Coronavirus Response Act

Authors: Daniel E. Gardenswartz, Tanya M. Schierling, Jing Y. Li, and Andrew C. Myers

Updated 4/1/2020

Based on newly issued regulations and amendments, we have updated our summary of the Emergency Family and Medical Leave Expansion Act (“EFMLA”) and Emergency Paid Sick Leave Act (“EPSLA”), within the Families First Coronavirus Response Act (“FFCRA”) with additional Q&As as of 4/1.  Helpful Fact Sheets and FAQs regarding the FFCRA have been published by the Department of Labor and can be found here:  https://www.dol.gov/agencies/whd/pandemic.

Emergency
Family and Medical Leave Expansion Act FAQs

Emergency Family and Medical Leave Expansion Act (“EFMLA”) – The statute takes effect April 1, 2020 and will remain in effect until December 31, 2020.  Employers will be reimbursed in the form of refundable tax credits for any payments made to employees under this statute.

Who is covered? 

The EFMLA covers all employers who
employ fewer than 500 employees.  It covers all employees employed by a
covered employer for at least 30 days prior to the
beginning of the leave.  Please note, the Secretary of Labor will be
issuing guidelines regarding the circumstances in which small employers (fewer
than 50 employees) can seek a waiver from the EFMLA “when the imposition of
such requirements would jeopardize the viability of the business as a going
concern.”

When can EFMLA be taken?

Employees employed for a least 30
days before the leave has begun, may take up to 12-weeks of job-protected leave
when they are unable to work (or telework) due
to the need to care for a son/daughter under the age of 18 whose school or
place of child care has closed.

Can employees take EFMLA
intermittently?

Yes, but only if the employer
agrees. Intermittent EFMLA is permitted only when the employee and employer
agree on an intermittent schedule.

Is EFMLA paid or
unpaid? 

Of the 12-weeks of job protected
leave, only the first 10-days are unpaid.  During the unpaid portion of
the leave, an employee may elect to substitute any accrued paid leave to cover
some or all of the unpaid period. 
Following the 10-day period, the leave is paid at 2/3 the employee’s regular
rate of pay, not to exceed $200/day and $10,000 in the aggregate. 
Employees who work a part-time or irregular schedule are paid based on the
average number of hours worked over the last six months.

How is an employee’s regular
rate of pay calculated?

The employee’s regular rate of pay
is calculated pursuant to the Fair Labor
Standards Act (“FLSA”) and generally includes all remunerations for
employment.  For the purpose of the
FFCRA, the regular rate of pay is calculated based on the average of the
employee’s regular rate over a period of up to six months prior to the date on which the leave is taken. 
The regular rate of pay can also be calculated by adding all compensation that is part of the regular rate over the 6-month
period and divide that sum by all hours actually worked in the same period.

Are there any notice
requirements?

Yes, an employer is required to post this notice.  The notice must be posted in a conspicuous place on premises and should be either emailed or posted to an internal or external website for employees working remotely.  Additional information regarding the notice requirements can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions.

Is the employee entitled to
reinstatement?

Employers with 25 or more employees
will have the same obligation as under the FMLA to return any employee who has
taken leave under the EFMLA to the same or equivalent position upon returning
to work. However, employers with fewer than 25 employees are generally excluded
from this requirement if the employee’s position no longer exists due to an
economic downtown or other circumstances caused by a public health emergency
during the period of EFMLA. This exclusion is subject to the employer making
reasonable attempts to return the employee to an equivalent position and
requires an employer to try to return the
employee to work for up to a year following the employee’s leave.

Do employees qualify for EFMLA if they have already taken FMLA leave within the last 12-month period?

Yes, but employees are only
permitted to take remaining portion of leave that is still
available.  If an employer was covered by
the FMLA prior to April 1, 2020, the
employee’s eligibility for EFMLA depends on how much leave they have already taken during the 12-month period the
employer uses for FMLA leave. The employee may take a
total of 12 workweeks for FMLA or EFMLA reasons during a 12-month
period. If the employee has taken some, but not all, 12
workweeks of leave under FMLA during the current 12-month period determined the
employer, the employee may take the remaining portion of leave available. If
the employee has already taken 12 workweeks of
FMLA leave during this 12-month period, the employee may not take additional leave
under the EFMLA.

Emergency
Paid Sick Leave Act FAQs

Emergency Paid Sick Leave Act
(“EPSLA”) – The statute takes effect April 1, 2020 and will remain in effect
until December 31, 2020.  Employers will be reimbursed in the form of refundable tax credits for any payments
made to employees under this statute.

Who is covered?

The EPSLA also covers all employers
who employ fewer than 500 employees.  The statute covers all employees
regardless of how long or how many hours worked.  The Secretary of Labor
will issue guidelines regarding the circumstances in which small employers (fewer
than 50 employees) can seek a waiver from certain provisions of the EPSLA “when
the imposition of such requirements would jeopardize the viability of the
business as a going concern.”

How many hours of paid sick
leave are granted?

Full-time employees (normally
scheduled to work 40 hours or more per week) are immediately granted 80 hours
of paid sick leave.  Part-time employees (normally scheduled to work fewer
than 40 hours per week) are awarded a number of hours
equal to the number of hours they work, on average, over a 2-week period. 
The paid sick leave does not carry over year to year and need not be paid out
at the time of termination.  Please note, the paid sick leave granted
under the EPSLA is in addition to any paid
sick leave awarded to an employee under state or local paid sick leave
ordinances.

For what reasons can an
employee use paid sick leave under the EPSLA?

An employee can take paid sick leave under this statute if the employee is unable to work or telework because they are:

1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. experiencing COVID-19 symptoms and seeking medical diagnosis;
4. caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
6. 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.

When taking paid sick leave for one
of the above-referenced reasons, employers may not require an employee
to first use other forms of paid leave provided by the employer.  Put
another way, employees must be permitted to first use the paid sick leave
provided under the EPSLA.

Does an employee get a
certain amount of paid sick leave for each possible basis under the EPSLA?

No, an employee can take up to two weeks—or ten days—(80 hours for a
full-time employee, or for a part-time employee, the number of hours equal to
the average number of hours that the employee works over a typical two-week
period) of paid sick leave for any combination of qualifying reasons. However,
the total number of hours for which an
employee receives paid sick leave is capped at 80 hours under the EPSLA.

Can employees take EPSLA intermittently?

Yes, you and your employees can agree to take
EPSLA intermittently if the employee is unable to telework
their normal schedule of hours due to one of the qualifying reasons in the EPSLA.

How much is the employee paid
when using paid sick leave under the EPSLA?

The rate of pay depends upon the
reason for the paid sick leave.  The rate of pay is either (1) the employee’s regular rate of pay, not
to exceed $511/day and $5,110 in the aggregate; or (2) 2/3 the employee’s
regular rate of pay, not to exceed $200 per day and $2,000 in the
aggregate.  Please note, additional guidelines from the Secretary of Labor
regarding these calculations is expected.  Below is a helpful table which
includes the 6 bases for using paid sick leave and the corresponding payment
obligations:

How is an employee’s regular
rate of pay calculated?

The employee’s regular rate of pay
is calculated pursuant to the FLSA and
generally includes all remunerations for employment.  For the purpose of the FFCRA, the regular rate of pay is
calculated based on the average of the employee’s regular rate over a period of
up to six months prior to the date on which the
leave is taken.  The regular rate of pay can also be calculated by adding
all compensation that is part of the regular
rate over the 6-month period and divide that sum by all hours actually worked
in the same period.

EFMLA
and EPSLA FAQs

Is the EPSLA or EFMLA retroactive?

No.

When does the small business exemption apply to exclude a small business from the provisions of the EPSLA and EFMLA?

An employer, including a religious or nonprofit organization, with
fewer than 50 employees (small business) is exempt from providing (a) paid sick
leave due to school or place of care closures or child care provider
unavailability for COVID-19 related reasons and (b) expanded family and medical
leave due to school or place of care closures or child care provider unavailability
for COVID-19 related reasons when doing so would jeopardize the viability of
the small business as a going concern. A small business may claim this
exemption if an authorized officer of the business has determined that:

• The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and
  financial obligations exceeding available business
  revenues and cause the small business to cease operating at a minimal capacity;

• The absence of the employee or employees requesting paid sick leave or
  expanded family and medical leave would entail a substantial risk to the
  financial health or operational capabilities of the small business because of
  their specialized skills, knowledge of the business, or responsibilities; or

• There are not sufficient workers who are able, willing, and qualified,
  and who will be available at the time and place needed, to perform the labor or
  services provided by the employee or employees requesting paid sick leave or
  expanded family and medical leave, and these labor or services are needed for
  the small business to operate at a minimal capacity.

If the worksite is closed before April 1, 2020 are employees still entitled to benefits under the EPSLA or EFMLA?

No.  If, prior
to the FFCRA’s effective date, an employee is sent home and not paid
because of lack of work, the employee is not entitled
to benefits under the EPSLA or EFMLA but may be eligible for state
unemployment insurance benefits.

If a worksite is closed on or
after the FFCRA’s effective date, but before an employee goes out on leave, is
the employee still entitled to benefits under the EPSLA or EFMLA?

No. If an employer closes after the FFCRA’s effective date (even if an
employee requests leave prior to the closure),
an employee will not get paid sick leave or expanded family and medical leave,
but they may be eligible for state unemployment insurance benefits. This is
true whether the employer closes the worksite for lack of business or because
it was required to close pursuant to a
Federal, State or local directive. Employees should contact their State
workforce agency or State unemployment insurance office for specific questions
about your eligibility.

Can an employee use the
employer preexisting leave entitlements (e.g. California Paid Sick Leave) and
EPSLA or EFMLA concurrently for the same hours?

No. If an employee is entitled to use both
preexisting leave entitlements and EPSLA or EFMLA, the employee must choose one
type of leave to take. Employees generally may not take both. However,
employers may allow employees to supplement the amount they receive from EPSLA
or EFMLA, up to their normal earnings, with preexisting paid leave.  Please note, an employer cannot require an
employee to supplement.  Under the FFCRA,
only the employee may decide whether to use existing paid vacation, personal,
medical, or sick leave from your paid leave policy to supplement the amount
your employee receives under the EPSLA or EFMLA. The employee would have to agree to use existing paid leave under an employer’s
paid leave policy to supplement or adjust the paid leave under the FFCRA.

Can an employer require an
employee to supplement or adjust the pay mandated under the FFCRA with paid
leave that the employee may have under my paid leave policy?

No. Under the FFCRA, only the employee may decide whether to use
existing paid vacation, personal, medical, or sick leave from your paid leave
policy to supplement the amount your employee receives from paid sick leave or
expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid
leave policy to supplement or adjust the paid leave under the FFCRA.

What records do employers
have to keep?

Employers are eligible for reimbursement of their EPSLA and EFMLA
costs. To claim a tax credit, employers must retain appropriate
documentation and should consult Internal Revenue Service (IRS) forms,
instructions, and information for the procedures that
must be followed.

Do EPSLA and EFMLA benefits
carry over?

No. The paid benefits under the
EFMLA and the EPSLA do not carry over into the next year and need not be paid
out at termination. In fact, the law is only
effective through December 31, 2020.

If an employer closes its worksite
or furloughs its workforce, can its employees still receive EPSLA or EFMLA
benefits?

No. According to the Department of
Labor, if an employer closes its worksite or furloughs its employees, even
after April 1, 2020, employees will not be entitled
to EPSLA or EFMLA, but employees may be eligible for unemployment
insurance benefits.

If an employer closes its worksite
while employees are on EPSLA or EFMLA, the employer must pay for any EPSLA or
EFMLA benefits its employee used before it closed.

This is just a general summary, and
we expect more changes and clarifications. Your company’s unique facts and
needs should also be addressed. Please feel free to give
us a call if you have further questions/concerns regarding either
statute.

***The information provided in this
article is for informational purposes only and not for
the purpose of providing legal advice. You
should contact your attorney to obtain advice with
respect to any particular issue or problem.***