FAQs for Employment Law Amid Coronavirus

Sorting through the Families First Coronavirus Response Act

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA” for short) into law, which was the (hopefully) first stimulus recovery bill passed by Congress in an attempt to help employers and employees weather the business interruptions and financial difficulties occurring because of the impact of the COVID-19 public health emergency.

But like most things that Congress writes, parsing through the FFCRA can be difficult and confusing, to say the least. So, until Congress starts writing laws that most people can easily understand and digest (I doubt it) we will continue to translate!

Here are 10 “frequently asked questions” about the employment law provisions of the FFCRA:

(1). What does the FFCRA do?

In general, the FFCRA created two new, mandatory, paid leave provisions in connection with the Coronavirus outbreak: an 80-hour sick-leave requirement, and an expanded, 10-week family medical leave requirement. These leave types provide for different rates of pay, and apply in different circumstances (more below).

(2). Who is subject to the FFCRA?

The new mandatory paid leave provisions must be followed by all private employers with less than 500 employees and by most public employers (e.g., school districts and municipalities).

(3). What is the new paid sick-leave requirement?

The FFCRA provides that covered employers must provide two weeks (up to 80 hours) of paid sick time to an employee if the employee is unable to work because he/she is:

(a) quarantined because of COVID-19 at the direction of either the federal or state government;

(b) self-quarantining because of COVID-19 on the advice of a doctor or other health care provider;

(c) experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

(d) caring for an individual who qualifies under either (a) (quarantine by government order) or (b) (self-quarantine by doctor’s orders) above;

(e) caring for a child whose school is closed or whose or care center or provider is unavailable for reasons related to COVID-19; or

(f). experiencing any other “substantially-similar condition” that might be later identified by the U.S. Department of Health and Human Services.

(4). How much paid sick-leave must employees get?

The answer (like most laws) is that it depends on the reason for the leave.

If an employee is unable to work because of any of the reasons in (a)–(c) above (i.e., the quarantining or self-care reasons), he/she is entitled to be paid the higher of either their regular rate of pay or the applicable minimum wage, up to a maximum of $511 per day, for 80 hours (i.e., up to 2 weeks).

If an employee is unable to work because of any of the reasons in (d) or (f) above (i.e., caring for someone else or for any other reason the Secretary of Health and Human Services might deem qualifying in the future), he/she is entitled to be paid the higher of either 66.67% (2/3) of their regular rate of pay or the applicable minimum wage, up to a maximum of $200 per day, for 80 hours (i.e., up to 2 weeks).

If an employee is unable to work because he/she is caring for a child whose school is closed or whose care provider is unavailable, he/she is entitled to be paid the higher of either 66.67% (2/3) of their regular rate of pay or the applicable minimum wage up to a maximum of $200 per day, for 12 weeks (2 weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave. (More on that below).

(5) What is the new family and medical leave expansion?

The FFCRA amended the Family and Medical Leave Act (FMLA) to now provide for up to 12 weeks of paid, family and medical leave, for eligible employees who are unable to work because they are caring for a child (or children) whose school is closed or whose child care provider is no longer available because of COVID-19. The first 10 days of this leave, however, may be taken as unpaid leave, but an employee has the right to substitute and use any accrued or available PTO, vacation, or sick time during that first 10 days.

(6) Who is responsible for paying for all this extra leave time?

Initially, the costs will fall on the employer. But, the FFCRA provides employers are entitled to quarterly tax credits equal to 100% of any leave benefits paid to employees under the Act. So, while an employer has to pay for extended leave days as they happen, its quarterly federal tax liability gets reduced on a dollar-for-dollar basis.

(7) I am a small employer, with only a few employees. Does this Act apply to me?

Yes, the FFCRA applies to all employers who have less than 500 employees. But the Act authorizes the Department of Labor to issue regulations that exempt businesses with less than 50 employees from the sick-leave and extended family and medical leave provisions, if the imposition of those requirements would jeopardize the operations and economic viability of the employer. If and when those regulations are issued, smaller employers may be able to request exemptions.

(8) Can my employer fire or lay me off because I need to be out of work under Coronavirus quarantine for 14 days?

No. The FFCRA specifically prohibits an employer from firing, discipling, or discriminating against any employee who takes advantage of any leave rights under the FFCRA.

(9) If I am out of work for 12 weeks on expanded family and medical leave because my child’s school has closed, is my employer required to give me my job back?

It depends. If the employer has more than 25 employees, then yes, any employee taking expanded leave for child care due to a school closure or child care unavailability would have the same restoration rights as traditionally provided for under the FMLA. If an employer has less than 25 employees, then if the position the employee had at the beginning of his/her leave no longer exists because of financial conditions or other operational changes in circumstance at the employer because of COVID-19: (a) the employer must make reasonable efforts to restore the employee to a similar position with equivalent pay and benefits; and (b) if reasonable restoration efforts by the employer are unsuccessful, the employer must make continuing efforts to contact the employee if a similar position with equivalent pay and benefits becomes available for up to 1 year beginning on the date the public COVID-19 health emergency ends, or the date occurring 12 weeks after the employee’s child-care leave began, whichever is earlier.

(10) I am a nurse who works at a small community hospital that has less than 500 employees. Do I qualify for extended leave rights under the FFCRA?

Maybe not. The FFCRA permits an employer to exclude any health care worker or emergency responder from the paid sick-leave or extended family and medical leave provisions of the Act. Seemingly, an employer under these provisions may have the ability to pick-and-choose which health care workers and emergency responders to exclude, and which to provide coverage rights.

Have more questions? Are you more confused now than before? (thanks, Congress). Contact us today for more information on how the FFCRA—and any future coronavirus-related laws—may affect you or your business. We may be working remotely, but we’re still here.

Michael J. Davey, Esquire
Employment Law Department
Eckell Sparks Law Firm
[email protected]