We have received telephone calls and emails from small business owners requesting guidance regarding the provision of sick leave to employees under the Families First Coronavirus Response Act (which went into effect today). The following letter provides business clients with a summary of the key provisions. We’d recommend that you visit the Department of Labor’s “FAQ” website (link below) with any additional general questions.
Families First Coronavirus Response Act ("FFCR")
Effective 4/1/2020, the FFCR’s when into effect and will remain in effect through December 31, 2020. We’ve summarized the two key provisions, the Emergency Family and Medical Leave (“FMLA”) Expansion Act and the Emergency Paid Sick Leave Act (“EPSLA”), immediately below.
What Businesses Are Subject to the Act
It’s important to note from the outset that this law only applies to employers with less than 500 employees. Furthermore, businesses with fewer than 50 employees may elect a “small business exemption” from the FFCR if providing child-care related paid sick leave and expanded family and medical leave jeopardizes the viability of the business as a going concern (discussed below). The Department of Labor issued a statement delineating the criteria used to determine the “small business exemption” via their website on 3/30/2020.
Emergency Family & Medical Leave (FMLA) Expansion Act Summary
Job Protected Leave: Employees of employers with fewer than 500 employees, who have been on the job for at least 30 days, have the right to take job-protected leave under FMLA for up to 12 weeks if:
1) they are caring for a child under that age of 18; and
2) if the school or place of care for the child has been closed, or the childcare provider or the child is unavailable, due to COVID-19 precautions.
Payment During 12-Week Term: For the first 10 business days of leave, the employer is under no obligation to pay the employee (though the employee could use accrued vacation days, sick days, or other available paid leave for unpaid time). Following the 10-day period, employers are required to pay employees at a rate of 2/3 their normal pay rate for up to ten weeks thereafter.
Cap on Pay: The family leave pay is capped at $200 per day and $10,000 in total.
Restoration of Employee’s Position: Employers generally need to restore an employee to the position held or its equivalent when the employee returns from leave; however, an exception exists for employers with fewer than 25 employees if certain conditions are met.
Emergency Paid Sick Leave Act
If Employee is Sick with Covid-19: Employers with less than 500 employees must provide employees with two weeks of paid sick leave that is:
1) Paid at the employee’s regular rate if (in connection with Covid-19) the employee is unable to work and: 2) Is subject to a Federal, State, or local quarantine or isolation order;
3)Has been advised to self-quarantine; or 4) Is experiencing symptoms.
If Employee’s Child/Family Member is Sick with Covid-19: Employers with less than 500 employees must provide employees with two weeks of paid sick leave that is:
a) Paid at two-thirds the employee’s regular rate if (in connection with COVID-19) the employee:
b) Is on leave to care for an individual who is subject to an isolation order or who is a quarantined employee; or
c) Is on leave to care for a child (under the age of 18) if the school or place of care for the child has been closed or the childcare provider of the child is unavailable, due to COVID-19 precautions.
Full Time v. Part Time: Full time employees can receive up to 80 hours of sick leave, while part-time employees are eligible for leave based on their scheduled or normal work hours in a two-week period.
No Rollover: This additional paid sick leave does not carry over from 2020 to 2021.
Small Business Exemption
As mentioned above, an employer with fewer than 50 employees is exempt from providing (a) paid sick leave due to school or place of care closures or child car provider unavailability for COVID-19 related reasons; and (b) expanded family and medical leave due to school or place or 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:
1. Expenses Exceed Revenue at Minimal Operating Capacity: 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;
2. Key Employees Absence Causes Financial Risk: 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
3. Not Sufficient Staff to Operate at Minimal Capacity: 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.
Based on the foregoing, a small business is exempt from certain paid sick leave and expanded family and medical leave requirements only if the:
(1) employer employs fewer than 50 employees; (2) leave is requested because the child’s school or place of care is close, or childcare provider is unavailable, due to COVID-19 related reasons; and (3) An authorized officer of the business has determined that at least one of the three conditions described above are satisfied.
DEPARTMENT OF LABOR INFORMATION SITE
We hope that this information is a relevant resource during this tumultuous time. Ongoing information on the FFCR Act and your obligations as an employer can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Please also note that employers subject to the act must provide employees with notice of their rights under the FFCR. A link to the employee rights poster is listed immediately below.
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Sincerely Yours,
Pieper Law LLC
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