Information for employers and employees, in relation to the recently-enacted Family First Coronavirus Response Act ("FFCRA")
Basic Considerations
The FFCRA requires that covered employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Covered employers need to make sure they post a conspicuous notice of the Act’s provisions in the workplace. Employers may not discriminate against employees who take advantage of provisions of the Act and file a complaint or institutes a proceeding under or related to the Act. Employers who violate the Act may be subject to penalties and enforcement under provisions of the FLSA and FMLA. The Act’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020 and December, 31, 2020.
Covered Employers
Paid sick leave and expanded family and medical leave of FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Some provisions may not apply to certain employees with fewer than 50 employees. If employers with less than 50 employees believe that the Act’s provisions would jeopardize the viability of their business, employers should document why their business will meet the criteria set forth by the Department with forthcoming regulations to qualify for this small business exemption. Covered employees include those employed by the employer for at least 30 days (on employers payroll as of March 2, 2020).
Eligibility for Leave
An employee is entitled to take leave related to COVID-19 if the employee is unable to work , including unable to telework, because the employee is subject to:
1. Government Order: subject to a Federal, State, or local quarantine or isolation order related to COVID-19
a. Duration: up to 80 hours for full-time; average number of hours of leave that employee works on average over two-week period
b. Amount: The higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
2. Healthcare Provider Advice: has been advised by a healthcare provider to self-quarantine related to COVID-19
a. Duration up to 80 hours for full-time; average number of hours of leave that employee works on average over two-week period
b. Amount: The higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
3. Experiencing Symptoms: experiencing COVID-19 symptoms and is seeking medical diagnosis
a. Duration: up to 80 hours for full-time; average number of hours of leave that employee works on average over two-week period
b. Amount: The higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
4. Quarantine Care: caring for an individual subject to a Government Order or Healthcare Provider Advice
a. Duration: up to 80 hours for full-time; average number of hours of leave that employee works on average over two-week period
b. Amount: The higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $2,000 in the aggregate (over a 2-week period)
5. Child Care: caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19
a. Duration: up to 12 weeks of leave at 40 hours a week for full time; for part-time, eligible for number of hours that the employee is normally scheduled to work over that period
b. Amount: The higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed up to 10 weeks of paid expanded family and medical leave)
6. HHS Specification: experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury
a. Duration: up to 80 hours for full-time; average number of hours of leave that employee works on average over two-week period
b. Amount: The higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $2,000 in the aggregate (over a 2-week period)
Calculating Part Time Hours
Employers can calculate hours of leave based on the hours part-time employees normally are scheduled or work. If that number is unknown or the part-time schedule varies, employers may use a six-month average to calculate the average daily hours. Such part-time employees may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
Overtime Hours
Overtime pay is included when calculating pay due to employees, but requires employers to pay due leave for up to 80 hours over two-week period. Note that pay does not need to include a premium under either the Emergency Paid Sick Leave Act or Emergency Family and Medical Leave Expansion Act.
Employer Tax Credits
Covered employers qualify for dollar-for-dollar reimbursement for all qualified wages paid under the FFCRA.
Employer Obligations
Notice. Covered employers must post in a conspicuous place on its premises a notice of FFCRA requirements.
Prohibitions. Employers may not discharge, discipline, or discriminate against any employee who takes paid sick leave under the FCCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Penalties
• First two weeks’ paid tick time or unlawful termination will be subject to §16 and §17 of the FLSA
• First ten weeks of paid leave to care for child whose school or place of care is closed (or child care provider is unavailable) will be subject to enforcement provisions of the FMLA
Paid Sick Leave Act
The FFCRA allows for employees to receive paid sick leave if they are unable to work. The following circumstances clarify what that means:
• Closure of Business Employees are not “unable to work” under the act if the employer does not have work for the employee. For example, if a store closes temporarily or indefinitely, that employer does not owe paid leave under the FFCRA. (Clarifying § 826.20(a).
• Telework & Gov’t Order For employees who are under a government order to quarantine, these employees are able to work if (1) their employer has work for them to perform, (2) the employer allows for employees to work from home, and (3) there are no extenuating circumstances that prevent them from performing that work. For example, a lawyer would not be unable to work if their employer had work for them to do and could do so on the lawyer’s personal computer. The fact that the employee is not using an employer’s computer is not enough to make an employee unable to work.
Telework
The Secretary of Labor is promulgating temporary regulations to implement public health emergency leave under Title I of the FMLA and emergency paid sick leave.
• Telework Employees who are teleworking for COVID-19 related reasons must always record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the FLSA. See 29 CFR 785.11-13; 785.48; see also 29 U.S.C. 206, 207; 29 CFR part 778. However, an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework. See, e.g., Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302, 200 L. Ed. 2d 474 (2018).
o A employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons as hours worked. For example, an employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee's parents who are temporarily living with the family, reserving work times when there are fewer distractions. Of course, the employer must compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee's first principal activity at 7 a.m. and last at 9 p.m. Section 790.6 and the Department's guidance regarding the continuous workday continue to apply to all employees who are not teleworking for COVID-19 related reasons.
