As of March 26, 2020
This is a follow-up to our earlier Stoneman, Chandler & Miller LLP Client Alert on the Families First Coronavirus Response Act (“FFCRA”) dated March 20, 2020, and provides a brief summary of the some of the key points covered by the U.S. Department of Labor (“DOL”) FFCRA Guidance. This Update does not include all of the provisions of the FFCRA covered in our Client Alert or summarize the full guidance, which can be found on the DOL’s website at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Therefore, you should consult with legal counsel to ensure that you are applying the most up-to-date law
1. Coverage. The FFCRA applies to private sector employers with less than 500 employees and Government employers employing at least one employee, which includes schools and other public sector employers.
2. Effective Date and Impact. The effective date for FFCRA is April 1, 2020, which is a day earlier than provided initially in the statute and our earlier Client Alert. The Guidance makes it clear that the paid leave provisions only apply to leaves taken between April 1, 2020 and December 31, 2020.
The FFCRA is NOT retroactive. Any pay or leave an employer provided before April 1 would not be covered by FFCRA or eligible for reimbursement/tax credit. Similarly, if an employer gave an employee leave because of the COVID-19 pandemic before April 1, the employer may not deny FFCRA emergency paid sick leave or emergency family and medical leave based on that previous time off.
The FFCRA does not apply to employees who are no longer employed by the employer on April 1, 2020.
3. Notice Posting. The Department of Labor has issued a posting that the FFCRA requires be posted. The posting can be found at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
This posting should be posted in a conspicuous place on its premises. An employer may satisfy this requirement by e-mailing or direct mailing the notice to employees, or posting this notice on an employee information internal or external website.
4. Basic FFCRA Time Off Benefits for Employers With Less Than 500 employees or Government Employers of at Least 1 Employee. FFCRA provides for two weeks of emergency paid sick leave for employees who are not able to work (or telework) due to one of six situations. When the reason for an employee’s inability to work (or telework) is the need to care for the employee’s child, who is under 18 years, because the school or place of care is closed, or the child care provider is unable due to the public health emergency, then the employee may take additional leave for up to 10 weeks under expanded family and medical leave.
- Leave to Care for Children. A full-time employee who is unable to work (or telework) on account of having to care for a son or daughter under 18 years because the school or place of care has been closed or the child care provider is unavailable due to a public health emergency is entitled to two weeks of pay up to a maximum of 80 hours of pay. An additional 10 weeks of expanded family and medical leave may also be taken by employees who have been employed 30 calendar days or longer. The amount of pay required is 2/3 the employee’s regular rate of pay or the minimum wage, whichever is greater, up to a maximum of $200 per day or $12,000 in total. The total amount of leave cannot exceed 12 weeks.
- Leave for the Employee’s Own Illness or Situation. A full-time employee who is unable to work (or telework) because s/he 1) is subject to a Federal, State or local quarantine or isolation order related to COVID-19; 2) has been advised by health care provider to self-quarantine due to concerns related to COVID-19; or 3) is experiencing symptoms of COVID-19 and seeking medical diagnosis, is entitled to 2 weeks of pay up to a maximum of 80 hours of pay. The amount of pay is 100% of the employee’s regular rate of pay or the minimum wage, whichever is greater, but the pay cannot exceed $511 per day or $5,110 in total.
The cap of 80 hours for emergency paid sick leave applies regardless of the reason for the emergency paid sick leave. Therefore, an employee who receives emergency paid sick leave for one reason may not receive additional leave for another reason beyond the 80- hour cap.
If an employee is not eligible for emergency family and medical leave under the FFCRA, the employee may be eligible for leave if s/he meets the eligibility criteria for existing FMLA leave (such as due to a serious health condition), which may be unpaid.
- Leave to Care for Another Individual. A full-time employee who is unable to work (or telework) on account of the need to care for an individual who is subject to a quarantine or isolation order or advised to self-quarantine as provided in 1) and 2) above, is entitled to 2 weeks of pay up to the maximum of 80 hours of pay for a maximum of $200 per day or $2,000 in total. The employee is not eligible for FFCRA emergency family and medical leave, but may be eligible for leave if s/he meets the eligibility criteria for existing FMLA leave, which may be unpaid.
5. Part-Time Employees. A part-time employee is eligible for FFCRA emergency paid sick leave for his/her normal hours scheduled. When the normal number of hours is unknown or the part-time schedule varies, use a 6-month average to calculate the average daily hours. The part-time employee may receive emergency paid sick leave for up to the number of hours per day for up to a 2-week period and for an additional 10 weeks if the reason for leave qualifies.
6. Determining Coverage. Private sector employers with 500 or more full-time and part-time employees are not covered by the FFCRA. In making the determination of whether an employer is covered, the following criteria should be applied:
- The 500-employee threshold for coverage includes all full-time and part-time employees in the U.S., District of Columbia, or possessions, employees on leave, temporary employees, joint employees (regardless of whether on your or another employer’s payroll) and day laborers from a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing relationship). Independent contractors under the Fair Labor Standards Act (“FLSA”) are not considered employees for purposes of the 500-employee threshold.
- Typically, a corporation (including separate establishments or divisions) is considered a single employer and its employees must be counted toward the 500-employee threshold. If a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA. When two entities are joint employers, all common employees must be counted toward the 500-employees threshold
- In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (“FMLA”). If the entities are integrated, then employees in all entities of the integrated employer will be counted.
7. Exemption for Small Employers With Less Than Fifty Employees. To elect a small business exemption, the employer must document why the business with fewer than 50 employees meets the Department of Labor’s criteria, which will be announced in more detail in future regulations.
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NOTE: The purpose of this summary is to give an overview of the new Families First Coronavirus Response Act. It is not intended as legal advice with regard to a particular employer’s situation. There remain a number of questions regarding how the Act will be interpreted and applied. Please refer any questions to your legal counsel.
Stoneman, Chandler & Miller LLP can help you address these recent developments. If you have any questions on the above, please do not hesitate to contact us.
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This client alert, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Stoneman, Chandler & Miller LLP and its attorneys. This client alert is intended for general information purposes only and you should consult a Stoneman, Chandler & Miller LLP attorney concerning any specific legal questions you may have.
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