COVID-19 Employment Law Update: Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) is a bill, originating in the U.S. House of Representatives, designed to expand government relief, as well as employer requirements in response to COVID-19. It was passed by the House on March 14, 2020, and amended on March 16th before being sent to the Senate. In a vote of 90 to 8 in favor of the FFCRA, the Senate approved the bill, and it went into the hands of the President, who signed it in the evening of March 18th.

Some of the main provisions of the FFCRA include:
  • Requiring employers with under 500 employees to provide paid sick leave
  • Requiring employers with under 500 employees to provide paid Family Medical Leave Act (FMLA)
  • Provides employer tax credits up to 100% for employers required to pay for paid sick leave and FMLA pursuant to the FFCRA
  • Provides free COVID-19 testing
  • Provides additional funds to states for handling unemployment compensation claims
  • Provides additional funding for food assistance programs

The impact of several of the provisions of FFCRA upon employers is significant, primarily the requirements to provide paid sick leave and paid FMLA leave. These are discussed below.

Family Medical Leave Act

The FMLA (pre-FFCRA) applied only to employers with over 50 employees. The FFCRA, however, temporarily expanded the FMLA to apply to any employer with under 500 employees. Significantly, it also expanded the qualifications by including a “qualifying need related to a public health emergency” with respect to COVID-19. Specifically, the expansion states:

QUALIFYING NEED RELATED TO A PUBLIC HEALTH EMERGENCY. The term ‘qualifying need related to a public health emergency,’ with respect to leave, means the H. R. 6201-13 employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee 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.

The FFCRA specifically states that if a qualified employee takes FMLA for a public health emergency, the initial 10 days (as opposed to 14) are unpaid, unless the employee decides to use their existing paid time off or sick leave granted by their employer to cover this period. An employer is prohibited from requiring that an employee use their already existing paid time off or sick leave during the 10-day period. Thereafter, the FFCRA requires that the employer pay for the remaining days of FMLA leave at a rate of “at least two-thirds” of employee’s regular rate of pay.

While the FFCRA applies to all employers with under 500 employees, there are exemptions for employers which are health care providers or emergency responders. The Act also indicates that the Secretary of Labor can exempt businesses with fewer than 50 employees, although the Act does not identify the parameters for such exemption or when those exemptions would take place.

Additionally, whereas the pre-FFCRA expanded FMLA provisions only applied to employees who worked for 1250 hours, the newly expanded FMLA is available to any employee who has been employed for 30 calendar days regardless of hours worked. The leave is only available beginning from the time of enactment of the law and ends on December 31, 2020.

The FFCRA also provides that the employer must reinstate the employee to the same position upon return from leave for public health emergency, which is largely the same as the pre-FFCRA FMLA expansion. However, the Act does provide that if an employer cannot immediately reinstate the employee to the same or equivalent position because no such position exists due to financial or operational issues, the employer must make “reasonable efforts” to contact and reinstate the employee to a similar position with similar pay if a position becomes available within a one-year period.

Emergency Paid Sick Leave

City of Pittsburgh employers are familiar with the City’s Paid Leave Sick Act, which went into effect just a few days ago, on March 15, 2020. However, the FFCRA is the first federal law requiring that employers with under 500 employees provide paid sick leave to employees. Once again, as with the FMLA expansion, the FFCRA paid sick leave expansion only impacts employers with fewer than 500 employees. Questions about whether companies with affiliates or subdivisions can combine employee total to avoid the FFCRA provision is not addressed and remains unknown at this time.

The FFCRA states that paid sick leave must be provided to ALL employees regardless of the amount of time worked.

Specifically, the Act provides:

SEC. 5102. PAID SICK TIME REQUIREMENT.
 
IN GENERAL An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
 
    1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
    2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
    3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
    5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter H. R. 6201-19 has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
    6. The employee is 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.
 
Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Full-time employees are to receive 80 hours of paid sick leave. Part-time employees are to receive an amount based on the average number of hours they work in a two-week period.

Under the FFCRA, an employee cannot be forced to find a replacement for their missed shift. Additionally, an employer cannot require an employee to use other paid leave provided by the employer to the employee before employee uses FFCRA paid sick time.

The FFCRA also mandates that employers post the requirements of the FFCRA in a noticeable place on their employment premises.

There are caps that are provided that specify:
  • the maximum amount of pay during the leave that will not exceed $511 per day ($5,110 in the aggregate) when sick leave is used for reasons identified in subparagraphs (1), (2) or (3) above (related to employee’s own health); and
  • maximums of $200 per day ($2000 in the aggregate) when sick leave is used for reasons identified in subparagraphs (4), (5) or (6) above, largely related to care of a family member.
As with the FMLA expansion, the paid sick leave expansion permits employers to exclude health care providers and emergency responders from this benefit, and indicates that small businesses with less than 50 employees may be eligible for an exemption by applying to the Secretary of Labor if paying sick leave would jeopardize the viability of the business.

Tax Credits to Employers

Division G of the FFCRA which addresses tax credits for paid sick leave and paid FMLA states that, with certain qualifications and conditions, employers will be allowed as an IRS credit against Social Security taxes, 100% of the qualified sick leave wages paid by such employer for each calendar quarter.

Conclusion

The FFCRA has vast, sweeping implications for employers – in particular, those with under 500 employees. We anticipate that this Act will prompt many questions and litigation and believe that, as a result, the Act may be subject to further amendment or interpretation. As such, this summary will be updated as developments occur.

As we continue to monitor this ever-evolving situation, updates will be provided as appropriate. For further information, please reach out to attorney Beth A. Slagle of Meyer, Unkovic & Scott  at 412.456.2890 or e-mail Beth at bas@muslaw.com.

Meyer, Unkovic & Scott COVID-19 Resource Center

For updates on this and other legal matters associated with COVID-19, please visit our Coronavirus Legal Resource Center at: https://www.muslaw.com/coronavirus-covid-19-resource-page/

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.
Related Attorneys