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Families First Coronavirus Response Act – “FFCRA”

Beginning April 1, 2020, the FFCRA provides emergency paid sick leave and expanded Family and Medical Leave to employees impacted by COVID -19. The FFCRA prohibits employers from requiring an employee to exhaust accrued paid-time-off (PTO) or state/local paid sick leave. Employees are entitled to utilize this federal emergency paid sick leave before using state or local paid sick leave or accrued employer-offered PTO.

The FFCRA requires a new Poster. Put this notice up with the rest of the your employment posters.  Alternatively, Employers may satisfy the notice requirements of the law by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website. Since the law only applies to current employees, the notice does not have to be shared with laid-off individuals.

When?

FFCRA is effective from April 1, 2020 to December 21, 2020.

Who and What is covered?

Employers:

Private employers (subject to the small business exception described below) and Governmental entities of less than 500 employees. The worksite must be open for business on April 1, 2020 and during the period in which the employee takes leave. See below for exceptions.

Tax Credits:

Certain tax credits may be available to Employers who pay sick leave under the FFCRA.  Each quarter, employers are entitled to a refundable tax credit equal to 100 percent of the qualified ESL wages paid to eligible employees.

Employees are eligible for:

  1. Emergency Sick Leave: 80 hours for full-time employees and the average hours over a two week period for part-time. Employees will be paid the normal wage or the applicable minimum wage (whichever is higher). Sick leave is capped at $511 per day and $5,110 in the aggregate. Those taking leave to care for family must be paid 2/3 of the rate and is capped at $200 and $2,000 in the aggregate.
    • Qualifying Reason: Employee must be
      • subject to a quarantine or isolation order;
      • advised by a healthcare provider to self-quarantine;
      • experiencing symptoms and waiting for a diagnosis test;
      • caring for any person falling into the above categories; or
      • caring for a child whose does not have school or childcare due to the pandemic.
    • The Stay Home-Stay Healthy Proclamation and other similar local measures are NOT quarantine or isolation orders.
    • The employee must have work and be unable to perform that work because of a Qualifying Reason. This means that employees who are not working because the business has temporarily closed are not eligible.
    • Those taking leave for themselves are to be paid their regular rate of pay; those taking leave to care for a family member are paid 2/3 of their regular rate of pay.
  1. Emergency Family Leave: up to 12 weeks of FMLA leave for employees who have been on the job for at least 30 days and who cannot work or telework because they have to care for a child due to the coronavirus emergency
    • The first 10 days can be unpaid (employee can use other paid leave). After this period, employees will receive a benefit equal to 2/3 their normal pay. The cap is $200 per day and $10,000 in the aggregate.
    • The employee must be restored to his or her original position, except for employers with less than 25 employees if the position no long exists and the employer makes reasonable efforts to restore them to an equivalent position.

Exceptions:

Small Business Exception: Businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. The DOL recommends that you document the reasons this exception applies. DOL intends to issue further regulations on this.

Healthcare providers or emergency providers exception: Employers of employees who are health care providers or emergency providers can exclude their employees from these leave requirements.

Furlough or reduction in hours: Employees may not use paid sick leave or paid family leave to “make up” for time when an employer cuts hours from their schedule, even if the reduction in available work is “somehow related to COVID-19.”  Only a specific COVID-19 Qualifying Reason entitles an employee to the use of paid leave.

If the worksite is closed and/or there is no work for the employee, then no leave can be taken. If the employee is on leave when the worksite closes, the leave ends. The employee should apply for unemployment.

  • Workplace closes after April 1, 2020: If an employer closes a worksite temporarily after April 1, 2020 but promises to reopen at some time in the future, employees are not entitled to use paid sick or paid family leave during the period of the worksite furlough. If the employer reopens and the employee resumes work before December 31, 2020, then the employee is eligible for paid sick leave or expanded family leave, as warranted.
  • Workplace Closures while on leave: If an employee’s worksite closes while he or she is on paid sick leave or expanded family leave, the employee is entitled to be paid for any time taken prior to, but not after, the worksite closure.

Other considerations:

The employer must continue health coverage during the leave. If the employee does not return to work after the leave, then check if the employee is still eligible to continue coverage or can be covered under COBRA.

The employer cannot require that PTO or sick leave be used before leave under FFCRA is used.

The 6.2% social security payroll tax does not apply to wages paid under this Act.

Even if an employee has already been provided paid leave due to COVID-19, they are still eligible to take paid leave under FFCRA for a Qualifying Reason on or after April 1, 2020 through December 31, 2020. The emergency paid sick leave and expanded family and medical leave benefits are not retroactive.

See this Q&A by the Department of Labor for additional information.

Contact PRK Livengood

We are here to help you navigate this uncertain landscape and unprecedented environment. Contact your PRK Livengood attorney for assistance or call our 24/7 Client Hotline: 425.505.3664.

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