Late yesterday, the United States Senate approved H.R. 6201 – the Family First Coronavirus Response Act (the “FFCRA”) – which provides for expanded protections under the Family Medical Leave Act (the “FMLA”) as well as paid sick leave to certain employees impacted by the novel coronavirus, COVID-19. The FFCRA was promptly signed into law by President Trump last night. What follows is a brief summary of the key components of the FFCRA and how they will impact employers and employees alike.
I. Expanded Coverage under the FMLA.
The FMLA currently applies only to employers with at least 50 or more employees within a 75 mile radius. The FFCRA expands the FMLA to impose additional categories of protected leave relating to COVID-19, which will apply to all employers except for employers who employ more than 500 people. Small businesses who employ less than 50 employees may be eligible to apply for an exemption from the FFCRA’s expanded leave requirements if compliance would be highly detrimental to the employer’s business.
The FFCRA’s additional leave protections will be available to any employee who has worked for a covered employer for at least 30 days. In contrast, protected leave under the existing FMLA is only available to employees who have worked at least 1,250 hours in the prior year and have been employed by a covered employer for at least one year.
II. Additional Categories of Protected Leave under the FFCRA.
The FMLA in its current form entitles eligible employees to only unpaid protected leave in certain circumstances, which are generally limited to the serious health condition of an employee or family member of an employee. The FFCRA expands the categories of protected leave to cover various scenarios commonly arising as a result of COVID-19. Specifically, the FFCRA provides that eligible employees will be entitled to protected leave if the employee would pose potential harm to the health of co-workers and others due to the employee’s exposure to COVID-19 or if the employee exhibits symptoms of COVID-19. The FFCRA also entitles eligible employees to take protected leave for the purpose of carrying for a family member who is required to quarantine due to the family member’s exposure to COVID-19 or the presence of symptoms of COVID-19.
The FFCRA also extends protected unpaid leave to employees who are unable to work due to the need to care for a minor child whose school has been closed due to a public health emergency, including concerns surrounding COVID-19.
III. Paid Sick Leave Obligations.
a. Paid Leave Under the Expanded FMLA.
Protected qualifying leave under the current FMLA is unpaid. The FFCRA amends the FMLA to provide that the first ten (10) days of qualifying leave would be unpaid, with the employee reserving the right to substitute earned but unused vacation, sick or PTO during the initial ten (10) day leave period. After the initial ten (10) day leave period, employees who continue to take qualifying leave will be entitled to paid leave equivalent to two-thirds of the employee’s regular rate of pay, subject to a maximum of two-hundred dollars ($200) per day.
b. Additional Paid Sick Leave Requirements
The FFCRA will also impose separate paid sick leave requirements, requiring covered employers to provide at least 80 hours of paid sick leave to employees. The paid sick leave requirements will not apply to employers that employ 500 or more employees, health care providers or emergency responders. An employee will be entitled to paid sick leave if the employee is subject to a quarantine or isolation order related to COVID-19, has been advised to self-quarantine by a health care provider due to COVID-19, has symptoms associated with COVID-19, is caring for an individual under quarantine or isolation, is caring for the employee’s child whose school or child care provider is closed, or for other reasons to be identified by the Departments of Health and Human Services, Labor and Treasury. The amount of paid sick leave is capped at $511 per day ($5,110 in total); however, if sick leave is taken to provide care for another individual or due to a school closure, the amount of paid leave is capped at $200 per day.
c. Tax Credits
To offset the financial burden imposed by the expanded leave entitlements and paid sick leave requirements, the FFCRA provides for additional tax credits to employers for 2020.
The FFCRA provides employers with a tax credit equal to the employer’s required portion of social security for 100% of qualified family leave wages paid as required by the FFCRA, up to a maximum of $10,000. The FFCRA also provides for a tax credit for 100% of qualified sick leave wages required to be paid due to COVID-19.
IV. Restoration to the Same or Equivalent Position
Upon the conclusion of an employee’s use of qualifying leave under the FMLA, including the expanded categories of leave imposed by the FFCRA, a covered employer is required to return the employee to the same or equivalent position. However, employers who employ less than 25 employees are exempt from the restoration requirement with respect to employees whose leave is taken due to COVID-19 if the position held by the employee no longer exists due to economic conditions caused by virus, and the employer has taken reasonable efforts to restore the employee to the same or equivalent position and makes efforts to contact the employee if an equivalent position subsequently becomes available.
The FFCRA’s expanded coverage and leave requirements will go into effect 15 days after the law is enacted, and will expire on December 31, 2020. Employers will be obligated to post written notice to employees of their rights under the FFCRA. The Department of Labor will issue a form notice that satisfies the notice requirements.
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