As employers grapple with the effects of Covid-19 and federal, state, and local government mitigation efforts, many have had to make difficult decisions involving the shutdown of physical locations, employees unavailable due to closed schools and childcare, and employees suffering from the illness, caring for a loved one, or under a precautionary quarantine.
Among the most significant legal developments affecting employers is the federal Families First Coronavirus Response Act (H.R. 6201) (“FFCRA”) signed into law on March 18, 2020 and set to become effective on April 2, 2020. The two sections of the FFCRA that will have the most direct impact on employers are Division C Emergency Family and Medical Leave Expansion Act and Division E Emergency Paid Sick Leave Act.
Emergency Family and Medical Leave Expansion Act
Under this emergency act, the definition of eligible employee is expanded to include any employee who has been employed for at least thirty calendar days. Also, covered employers includes any employer with fewer than 500 employees. While the FFCRA gives the Department of Labor authority to issue regulations to exclude certain healthcare providers, emergency responders, and employers with fewer than 50 employees if compliance will threaten their ability to continue as an ongoing concern, as of now, there is no statutory minimum number of employees for an eligible employer.
In order for an eligible employee to qualify for the expanded leave, the leave must be related to a public health emergency. Specifically, the leave would be available to an employee unable to work or telework due to a need to care for a son or daughter under 18 years of age, if the school or daycare is closed, or a childcare provider is unavailable due to a public health emergency. It should be noted that childcare provider is defined as a provider who receives compensation on a regular basis.
Significantly, the leave provided is paid, although the first 10 days of such leave may be unpaid. An employee may elect to use available paid time off during this period; however, an employer may not require it. Thereafter, the paid leave must pay a minimum of two thirds of regular rate of pay for the hours the employee normally be scheduled to work up to a maximum of $200 per day and $10,000 in the aggregate.
The job protection provisions of the FMLA apply to leave covered by the FFCRA family leave expansion; however, an employer that employs fewer than 25 employees may be exempt under certain conditions; i.e., if the position no longer exists due to the public health emergency, the employer makes reasonable efforts to restore the employee to an equivalent position, and that the employer contacts the employee within one year of the end of the leave to let them know of an open equivalent position. Finally, the law excludes employers from civil liability in an employee initiated suit if the employer did not employ 50 or more workers for each working day during 20 or more calendar workweeks in the preceding or current calendar year.
Emergency Paid Sick Leave Act
The emergency paid sick leave provisions of the FFCRA also apply to private employers with fewer than 500 employees. Employees eligible to receive paid sick time are those unable to work or telework because the employee is:
- subject to a federal, state, or local quarantine or isolation order related to Covid-19;
- advised by their health care provider to self-quarantine due to concerns related to Covid-19;
- experiencing symptoms of Covid-19;
- caring for an individual subject to an order or advice under subparagraphs 1 and 2;
- caring for a son or daughter under 18 years of age, if their school or daycare is closed, or a childcare provider is unavailable due to Covid-19 precautions; or
- experiencing other similar conditions specified by the Secretary of Health and Human Services.
These employees are to be provided 80 hours of paid sick time if full-time. Part-time employees are to be provided paid sick time for the average number of hours the employee works over a two week period. Paid sick leave is available to employees regardless of how long they have been employed and employers may not require the requesting employee to search for or find a replacement. The employer paid sick leave obligations are for their full hourly rate, but are capped at a per employee amount of $511 per day and $5,110 in the aggregate for leave based on 1 through 3 above. For leaves based on 4 through 6 above, the employer needs to pay two-thirds of the hourly rate, up to a cap of $200 per day and $2,000 in the aggregate.
The law prohibits retaliation based on an employee’s request for such leave and applies the penalties (double damages and attorney’s fees) available under the Fair Labor Standards Act to such violations. As with the expanded FMLA, the Department of Labor is allowed to enact regulations exempting certain employers, including employers with fewer than 50 employees whose viability may be jeopardized.
The Department of Labor should be issuing guidance in the coming days. We will keep our clients updated on significant changes as the situation evolves and remain available to respond to specific employer questions. We encourage all readers to consult with counsel if they have specific questions or concerns.