The Families First Coronavirus Response Act (“FFCRA”) has made substantial changes to employee rights and employer responsibilities, including the creation of emergency paid sick leave and the expansion of the FMLA to include paid leave in certain circumstances.
The Families First Coronavirus Response Act
On March 18, 2020, the president signed the FFCRA into law.  The FFCRA contains several significant changes to federal law in response to the COVID-19 pandemic, including the creation of emergency paid sick leave and an expansion of the Family and Medical Leave Act (“FMLA”).  The FFCRA goes into effect no later than fifteen (15) days after it became law.  We have provided a brief synopsis of two sections of the FFCRA that are most relevant to employers and employees.
Emergency Paid Sick Leave
Division E of the FFCRA—titled the “Emergency Paid Sick Leave Act”—requires private employers with fewer than 500 employees and public agencies to provide their employees with emergency paid sick leave.  Full-time employees are provided eighty (80) hours of emergency paid sick leave and part-time employees are entitled to an amount equal to the number of hours that such employee works, on average, over a two (2) week period.  Emergency paid sick leave is available to an employee regardless of how long that employee has been employed by his or her employer.
The emergency paid sick leave may be used when an employee is unable to work or telework 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 has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

When emergency paid sick leave is taken for the reasons listed in paragraphs (1), (2), or (3) above, an employee is entitled to receive 100% of their regular pay rate, subject to a daily limit of $511 and an aggregate cap of $5,110.  When emergency paid sick leave is taken for the reasons set forth in paragraphs (4) or (5), an employee is entitled to receive two-thirds of their regular pay rate, subject to a daily limit of $200 and an aggregate cap of $2,000.
Employers may not require an employee to search for or find a replacement employee to cover the hours during which the employee is using emergency paid sick leave.  In addition, an employee may use emergency paid sick leave before any other paid leave available to the employee under company policy or state law.
The Secretary of the United States Department of Labor has the right, but not the obligation, to exempt small businesses with fewer than 50 employees from limited portions of the Emergency Paid Sick Leave Act if the Secretary determines that compliance would jeopardize the viability of the business as a going concern.
Emergency Family and Medical Leave Expansion Act
Division C of the FFCRA—titled the “Emergency Family and Medical Leave Expansion Act”—expands the FMLA to provide paid leave in certain circumstances related to the COVID-19 pandemic.  The Act applies to employees working for employers with fewer than 500 employees.  All full-time and part-time employees who have worked for the employer for at least thirty (30) calendar days are eligible.
An employee is entitled to a maximum of twelve (12) weeks of FMLA leave when the 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 declared with respect to COVID-19.
The first ten (10) days of leave are unpaid but an employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave, including emergency paid sick leave (created by Division E of the FFCRA) for the unpaid leave.  In other words, an employee may use paid leave to replace the first ten (10) unpaid days of FMLA leave.  Subsequently, an employee is entitled to receive two-thirds of their regular pay rate for up to ten (10) weeks, subject to a daily limit of $200 and an aggregate cap of $10,000.  There are special rules for employees working a variable schedule.
The normal job restoration requirements of the FMLA remain in effect with some limited exceptions for small businesses with fewer than twenty-five (25) employees.
The information provided in this alert was up-to-date at the time of publication, is provided for general purposes only and does not constitute legal advice, and the transmission and receipt of this information does not create or constitute an attorney-client relationship.