Helping employers understand the FFCRA in plain English
I. Introduction
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law, effective April 1, 2020. The FFCRA incorporates several other federal labor and employment regulations by reference and contains several provisions aimed at mitigating the catastrophic effects of the current health pandemic on Americans.
The FFCRA contains provisions concerning emergency preparedness and response to coronavirus, nutrition waivers, an Emergency Family and Medical Leave Expansion Act (EFMLEA), emergency unemployment insurance stabilization and access, an Emergency Paid Sick Leave Act (EPSLA), certain health provisions, tax credits for employers who pay sick and family medical leave to employees, and budgetary effects.
The FFCRA requires employers to conspicuously post an approved notice of employees’ rights. The Notice will look similar to other federal labor law posters you should already conspicuously displayed in your workplace. It will be created by no later than April 8, 2020 and circulated thereafter.
An employee’s rights to paid and unpaid leave, and an employer’s obligations under the FFCRA, are critical for employers to understand to avoid the wave of lawsuits that are certain to follow. These rights and obligations are contained in the EFMLEA and EPSLA provisions of the FFCRA.
First, employers need to know whether these two provisions of the FFCRA apply to them. Both of these provisions apply to all public employers, and to private employers with fewer than 500 employees.
Private employers with less than 50 employees may be exempt from these two provisions of the FFCRA only, if they can establish that compliance with these provisions “would jeopardize the viability of the business as a going concern.” In other words, if compliance would bankrupt your business with less than 50 employees, you may be exempt from these provisions.
II. Lack of childcare
The EFMLEA provision will be important for employees who have minor children whose school or care provider is closed, or unavailable. The Act expands upon the Family Medical Leave Act (FMLA) which permits qualifying employees to take up to 12 weeks of unpaid, job protected leave. An employer need not pay an employee who requests leave under the FMLA, but it must hold their job for up to 12 weeks. The FMLA applies to employers with 50 or more employees.
The EFMLEA is effective from April 1, 2020, to December 31, 2020, and will also apply to businesses with less than 50 employees, unless exempted. The EFMLEA applies to employees who have been employed more than 30 days.
The EFMLEA entitles employees who are “unable to work (or telework)” due to a need for leave to care for a minor child of the employee if the school or place of care has been closed, or the childcare provider of such child is unavailable, due to a public health emergency. The legislative intent of the act is clearly to protect employees’ jobs when they are forced to take off due to lack of childcare as a result of coronavirus.
Once a qualifying employee requests leave under the EFMLEA, the employer is not required to pay the employee for the first 10 days unless the employee elects to use other paid leave, such as sick or vacation leave. However, for the remaining 10 weeks, an employer must pay the employee no less than two-thirds (66.67%) of their regular rate of pay (up to $200/day and $10,000 total).
Upon the expiration of the 12-week period, an employer must restore the employee to their position unless a very limited set of circumstances apply.
III. Paid Sick Leave
Under the EPSLA, an employer must provide an employee paid sick time if the employee is unable to work due to Federal, State, or local quarantine order related to COVID-19, the employee has been advised by a healthcare provider to self-quarantine due to COVID-19 concerns, the employee is having symptoms of COVID-19 and seeking a medical diagnosis, the employee is caring for someone subject to quarantine, the employee is caring for a minor child whose school or care provider is closed or unavailable due to COVID-19.
Healthcare providers and emergency responders may be exempted from the Act if their employers so chooses, because they are on the front lines and we need them to keep working.
Under this provision, the employer must pay the employee for two weeks of work (80 hours for full time employees, or the regular weekly amount for part time employees).
IV. Conclusion
Reading these provisions in unison with one another, employees who need off for the reasons under the EPSLA shall be paid for two weeks. After this period, the employee may then take another 12 weeks of job protected leave under EFMLEA. During the first 10 days of EFMLEA leave, an employer need not pay the employee unless the employee uses another form of personal leave (vacation, sick, etc…) and for the remaining 10 weeks, the employer must pay the employee two thirds of their regular rate of pay and must hold their job for the duration of the period.
The penalty for an employer who willfully discharges, disciplines, or discriminates against an employee who exercises their rights under this Act is harsh. An employer may face fines, imprisonment, mandatory reinstatement of the employee to their position, payment for lost wages, and most importantly attorney’s fees and costs. This means labor and employment attorneys will be hungry for these types of cases, because even if they get a penny for the employee, they can recover all their attorney’s fees and costs from the employer.
For these reasons, it is critical to consult with a labor and employment attorney on specific issues which arise under the FFCRA before it is too late. Several clients have reached out to us for advice and counsel during these difficult times. The attorneys at Andrews, Crabtree, Knox & Longfellow, LLP are well-suited to address your businesses concerns as they relate to this rapidly evolving pandemic. Best wishes and be well! We’re here if you need us.