FFCRA provides for two new emergency paid leave benefits in response to the COVID-19 pandemic. The Emergency Paid Sick Leave Act (EPSLA), entitles certain employees to take up to two weeks of paid sick leave. The Emergency Family and Medical Leave Expansion Act (EFMLEA), which amends the Family and Medical Leave Act, (FMLA), permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19.
In general, the FFCRA requires employers with fewer than 500 employees to provide eligible employees up to two weeks of paid sick leave at full pay, up to a specified cap, when the employee is unable to work because the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.
The FFCRA also provides up to two weeks of paid sick leave at partial pay, up to a specified cap, when an employee is unable to work because of a need to care for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19; because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons; or because the employee is experiencing a substantially similar condition, as specified by the Secretary of Health and Human Services.
The FFCRA also requires covered employers to provide up to twelve weeks of expanded family and medical leave, up to ten weeks of which must be paid at partial pay, up to a specified cap, when an eligible employee is unable to work because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons.
The usual FMLA requirements that an employee must be employed for a year, have worked for 1,250 hours, and work in a location where there are 50 employees within a 75-mile radius would not apply for EPSL or EFMLA. Rather, an eligible employee for EFMLA purposes is one who has been employed for at least 30 days prior to the leave request. EPSL is available to any current employee regardless of length of service.
Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave , if the leave payments would jeopardize the viability of their business as a going concern.
Under the FFCRA, covered private employers qualify for reimbursement through refundable tax credits as administered by the Department of the Treasury, for all qualifying paid sick leave wages and qualifying expanded family and medical leave wages paid to an employee who takes leave under the FFCRA, up to per diem and aggregate caps, and for allowable costs related to the maintenance of health care coverage under any group health plan while the employee is on the leave provided under the FFCRA.
“Son or daughter” means a biological child, adopted child, foster child, stepchild, legal ward, or child of a person standing in loco parentis under 18 years of age or 18 years of age or older who is incapable of self-care because of a mental or physical disability.
“Place of care” means a physical location in which care is provided for the Employee’s child while the employee works for the employer. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.
A “childcare provider” is a provider who receives compensation for providing child care services on a regular basis, including a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law.
The eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.
A “Health care provider” means a medical professionals who is capable of diagnosing serious health conditions and issuing certifications regarding the nature and probable duration of serious health conditions.
A “Quarantine or Isolation Order” includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that causes an employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.
“Telework” means work the employer permits or allows an employee to perform while the employee is at home or at a location other than the employee’s normal workplace. An employee is able to Telework if:
His or her employer has work for the employee:
1. the Employer permits the employee to work from the employee’s location; and
2. there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.
Telework may be performed during normal hours or at other times agreed by the employer and employee. Telework is work for which wages must be paid as required by applicable wage-hour law and is not compensated as paid leave under the EPSLA or the EFMLA. Employees who are teleworking for COVID-19 related reasons must be compensated for all hours actually worked and which the employer knew or should have known were worked by the employee.
Emergency Family and Medical Leave Expansion Act
Applies to employers that employ fewer than 500 employees and most public employers regardless of size.
Full- and part-time employees who have been employed for at least 30 calendar days.
Certain health care providers and emergency responders may be excluded from this group of impacted employees.
Health care provider includes anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.
Emergency responders are defined as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.
Public Health Emergency Leave
An employee is entitled to take up to twelve workweeks when he or she is unable to work, including telework, to care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus.
Documentation of Leave
An employee must provide the employer with:
the name of the son or daughter being cared for;
the name of the school, place of care, or child care provider that has closed or become unavailable; and
- a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave.
Notice to Employer
In any case where the necessity for leave is foreseeable, an employee shall provide the employer with such notice that is practicable.
Pay During Leave
First 10 days
The first 10 days of leave may be unpaid, but an employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during the leave at the regular rate. The employer cannot force an employee to use their accrued paid leave. An employee could also opt to use EPSL during this 10-day period, subject to the daily maximums (see below).
After the first 10 days
After 10 days of unpaid leave, employers must pay EFMLA leave only for the reasons above related to COVID-19 at not less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled.
In no event shall paid leave exceed $200 per day and $10,000 in aggregate.
In the case of an employee whose schedule varies from week to week, to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if the employee had not taken leave, the employer can use a number equal to the average number of hours that the employee was scheduled to work over a 6-month period, ending on the date on which the employee takes such leave.
If the employee did not work over such a period, the reasonable expectations of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
As an alternative, the amount of pay for EFMLA leave may be computed in hourly increments instead a full day. For each hour of leave taken after the first two weeks, the employer must pay the employee two-thirds of the employee’s average regular rate.
Continuation of Health Insurance
As with any FMLA leave, during a leave of absence the group health insurance coverage, if any, which the employee and his dependents had when the leave commenced shall be continued in force (subject to certain conditions). Typically, the employer may require the employee's contributions to be made to the employer directly or to the insurance carrier, and at times consistent with practice or as agreed upon, except that prepayment may not be required without the employee's consent. The employee must be informed in advance and in writing of the terms and conditions under which his payments will be made.
Restoration to Position
Under the FMLA, the employee’s leave is job-protected, meaning an employer must return the employee to the same or equivalent position upon their return to work absent special circumstances.
An employee is not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether he or she took leave. In order to deny restoration to employment, an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
Employers with fewer than 25 employees
There is no right to job restoration if the employee’s position does not exist after FMLA leave due to an economic downturn or other operating conditions that affect employment caused by a public health emergency during the period of leave. However, the employer must make reasonable attempts to return the employee to an equivalent position, and is required to make good efforts to contact a displaced employee for up to a year after they are displaced.
Emergency Paid Sick Leave Act
Applies to employers that employ fewer than 500 employees, and public employers regardless of size.
Full- and part-time employees, regardless of how long the employee has been employed.
Reasons for Sick Leave
An employee who is unable to work (or telework) may take sick leave for the following reasons:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine because of COVID-19;
- the employee is experiencing symptoms of COVID-19, such as fever, dry cough, shortness of breath; or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention and is seeking a medical diagnosis;
- the employee is caring for an individual subject to a government order or medical advice as described above in numbers 1 and 2, respectively;
- the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
- the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Documenting the Reasons for Sick Leave
Depending on the reason for taking Paid Sick Leave, an employee must provide the employer with:
- the name of the government entity that issued the Quarantine or Isolation Order, or
- the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19;
- the name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject; or
- the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
- the name of the son or daughter being cared for, and
i. the name of the school, place of care, or child care provider that has closed or become unavailable; and
ii. a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave.
The employer may also request an employee to provide such additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA.
Sick Time Pay
Employees are entitled to 80 hours of paid sick time, based on their regular rate of pay (or, for workers who work less than full time, the typical number of hours they are scheduled to work in a two-week period).
Where an employee takes leave for reasons (1), (2) and (3) above (under the “Reasons for Sick Leave” section, i.e. generally, an employee’s own illness or quarantine), employee is entitled to 100% of their pay, capped at $511 per day ($5,110 in the aggregate).
Where leave is taken for reasons (4), (5), or (6) (care for others or school closures), employee is entitled to 2/3rds of their pay, capped at $200 per day ($2,000 in the aggregate).
Any paid leave provided before the law is enacted cannot be credited against the employee’s paid leave entitlement.
Hours need not be carried over after December 31, 2020 and an employee’s right to take paid sick leave ends after they return from their leave.
There is no requirement to pay out Paid Sick Leave at the end of employment.
Sequencing of Paid Sick Leave
An employer cannot require but an employee can choose to first use Paid Sick Leave before using any other leave to which the employee is entitled by any Federal, State or local law, collective bargaining agreement - or employer policy that existed prior to April 1, 2020.
No employer may require, coerce, or unduly influence any employee to first use any other paid leave to which the employee is entitled before the employee uses Paid Sick Leave. Nor may an employer require, coerce, or unduly influence an employee to use any source or type of unpaid leave prior to taking Paid Sick Leave.
Sick Leave Policies
An employer cannot change its existing sick leave policy to avoid compliance.
An employer cannot require an employee to search for a replacement or to cover hours during the use of paid sick time.
After the first workday (or portion thereof) an employee receives sick pay, an employer can require an employee to follow reasonable notice provisions.
One Time Use
An employee is limited to a total of 80 hours Paid Sick Leave. An employee who has taken all such leave and then changes employers is not entitled to additional Paid Sick Leave from his or her new employer.
An employee who has taken some, but fewer than 80 hours of Paid Sick Leave, and then changes employers is entitled only to the remaining portion of such leave from his or her new employer and only if his or her new employer is covered by the EPSLA. Such an employee’s Paid Sick Leave would expire upon reaching 80 hours of Paid Sick Leave total, regardless of the employer providing it, or when the employee reaches the number of hours of Paid Sick Leave to which he or she is entitled based on a part-time schedule with the new employer.
Provisions Applicable to both EPLSA and EFMLA
An employee may take paid sick or expanded family and medical leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the employer and employee agree. The ability of an employee to take paid sick or expanded family and medical leave intermittently while reporting to an employer’s worksite depends upon the reason for the leave.
(1) If the employer and employee agree, an employee may take up to the entire portion EPSL and EFMLA intermittently to care for the employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, because of reasons related to COVID-19. Under such circumstances, intermittent EPSL or EFMLA may be taken in any increment of time agreed to by the employer and employee.
(2) An employee may not take paid sick leave for COVID-related medical reasons intermittently. Once the employee begins taking paid sick leave for one or more of such reasons, the employee must use the permitted days of leave consecutively until the employee no longer has a qualifying reason to take Paid Sick Leave.
(3) Teleworking. If an employer directs or allows an employee to telework, or the employee normally works from home, the employer and employee may agree that the employee may take Paid Sick Leave for any qualifying reason or Expanded Family and Medical Leave intermittently, and in any agreed increment of time (but only when the employee is unavailable to Telework because of a COVID-19 related reason).
An employer cannot retaliate against an employee for using paid sick time and a violation of the FFCRA is treated as a violation of the Fair Labor Standards Act for imposition of penalties.
Written Notice to Employees
Employers are required to post a model notice provided by the U.S. Department of Labor. Each employer must post the notice in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
Withholdings on Qualified Leave Wages
Qualified leave wages paid under EPLSA and EFMLA are wages subject to withholding of federal income tax and the employee’s share of Social Security and Medicare taxes. Qualified leave wages are also considered wages for purposes of other benefits that the Eligible Employer provides, such as contributions to a 401(k) plan.
Employees Recalled from Layoff
The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides that employees who were laid off on or after March 1, 2020, and who had been employed for at least 30 of the 60 days preceding the layoff, are eligible for paid family leave under the FFCRA upon their rehire.
Complaints of violation may be filed by aggrieved individuals in either federal or state court, or with the Wage-Hour Division of the U.S. Department of Labor, although employers with fewer than 50 employees within a 75-mile radius are exempt from civil FMLA damages in an FMLA lawsuit.
The law takes effect on April 1, 2020 and sunsets on December 31, 2020. Enforcement is delayed for 30-days when employer acts in good faith to comply.
Exemption for Small Businesses
An employer with fewer than 50 employees (small business) is exempt from providing leave under EPSL and EFMLA when providing paid leave to an employee or employees would jeopardize the viability of the business as a going concern. A small business is entitled to the exemption if an authorized officer of the business has determined that:
(i) The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
(ii) The absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
To elect the small business exemption, an employer must document that a determination has been made pursuant to the criteria set forth above. The employer should not send such documentation to the U.S. Department of Labor, but rather retain the records in its files. Regardless of whether a small employer chooses to exempt one or more employees, the employer is still required to post notice of the law.
An employer that denies an employee’s request for paid sick leave or expanded family and medical leave must document the determination and retain such documentation for four years.
Tax Credits for Emergency Paid Sick Leave and Expanded Family and Medical Leave
Refundable tax credits are available to employers who are required to provide leave under EPSLA or EFLMA. These tax credits are allowed against the employer portion of Social Security taxes. While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified expanded family and medical leave wages exceed the taxes they would owe.
In order to claim tax credits from the Internal Revenue Service (IRS), an employer is advised to maintain the following records for four years:
(1) Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that is eligible for the credit, including records of work, telework and paid sick leave and medical leave;
(2) Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
(3) Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
(4) Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
(5) Other documents that may be required to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures.