The Families First Coronavirus Response Act and its Emergency Paid Sick Leave Act: What Employers Need to Know

The President has just signed into law the emergency Families First Coronavirus Response Act (FFCRA), in response to the novel coronavirus (COVID-19). This new law is effective April 1, 2020. (Notably, the U.S. Department of Labor has recently clarified this date as the new date of enactment.) 

Part of this new law includes an “Emergency Paid Sick Leave Act,” which requires most U.S. private employers to provide emergency paid sick leave to employees under circumstances related to COVID-19.  Below are answers to critical questions about the emergency paid sick leave provisions of the FFRCA.  

Which Employers Must Pay Paid Sick Leave and to Whom?

Under the “Emergency Paid Sick Leave Act,” which, again, is only part of the FFCRA, most U.S. private employers must now provide paid leave to employees under specific circumstances.

Specifically, private employers with fewer than 500 employees (and public employers with at least one employee) are now required to provide employees with emergency paid sick leave, if the employee as a “need for leave” for any of the following reasons related to COVID-19:

• The employee is subject to a Federal, State or local quarantine or isolation order because of COVID-19;
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• The employee is caring for an individual who is subject to a Federal, State or local quarantine or isolation order because of COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• The employee is caring for a child of such employee if the school or place of care of the child has been closed or the child care provider is not available, because of COVID-19 precautions.

Notably, however, if an employee is a health care provider or emergency responder, that employee’s employer can elect to deny emergency paid sick leave under this new law. 

Businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Such an exemption applies  if an authorized officer of the business determines that one of the three following conditions applies: (1) the provision of paid sick leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting paid sick 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 (3) 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 paid sick leave, and these labor or services are needed for the small business to operate at a minimal capacity.

If a Business Reduces Hours, Closes, or Furloughs Employees because of a Government-issued Stay-at-Home Order, Are the Employees Entitled to Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA)?

No. Guidance issued by the Department of Labor clarifies that employees whose hours have been reduced, who have been furloughed, or whose worksites have been closed, are not entitled to Emergency Paid Sick Leave under the FFCRA, but they are entitled to unemployment benefits. If an employer does not have work for employees, reduces hours, closes its business, or furloughs its employees, whether for lack of business or because closure is required by a Federal, State, or local directive or stay-at-home order, there is no “need for leave,” so the employee is not entitled to Emergency Paid Sick Leave.

How Much Paid Sick Leave Must Be Paid?

The amount of emergency paid sick leave to which an employee is entitled depends on whether they are a full-time employee or a part-time employee. A full-time employee is entitled to 80 hours of emergency paid sick leave. A part-time employee is entitled to the number of hours equal to the average number of hours the employee works over a two-week period.

At What Rate Must Employers Pay Emergency Paid Sick Leave?

Employers are required to pay employees at their regular rate of pay during the emergency paid sick leave period regarding their own coronavirus-needed leave, and at two-thirds of their regular rate of pay if they are taking leave to care for a family member or because of school closure or child-care related issues. 

However, there is a cap on the amount of money an employee can be paid emergency sick leave. Specifically, the new law provides that: (1) if used for an employee’s own coronavirus-needed leave, emergency paid sick time should not exceed $511 per day and $5110 in the aggregate; and (2) if used to care for a family member or because of school closure or child care-related issues, emergency paid sick time should not exceed $200 per day and $2,000 in the aggregate.   

What If the Employer Cannot Reasonably Calculate a Part-Time Employee’s Average Hours to Determine How Much Paid Sick Leave Must Be Provided?

If an employer is unable to determine “with certainty” the number of hours a part-time employee worked because that employee’s schedule varies from week to week, an employer should determine the average number of hours that the employee was scheduled each day in the prior six-month period ending on the date on which the employee took emergency paid sick time, including hours for which the employee took any kind of leave. The employer must provide the equivalent amount of emergency paid sick leave.

However, if the employee did not work for employer for the entire prior 6 month period, the employer should provide the employee with emergency paid sick leave equivalent to the “reasonable expectation 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 example, if an employee worked on average 4 hours per day in the prior six-month period (including any leaves he/she/they she may have taken), the employer should give the employee two-weeks of pay at an average of 4 hours per day, i.e., 40 hours.   

Can an Employer Require an Employee to Find a Replacement Employee to Cover the Employee’s Time?

No. An employer may not require that the employee involved search for or find a replacement employee to cover the hours during which the employee is using emergency paid sick time.

Must an Employee Have Worked for the Employer for a Certain Period of Time Before Taking This Paid Sick Leave?

No. Emergency paid sick time shall be available for immediate use by the employee for the purposes allowed, regardless of how long the employee has been employed by an employer.

Are Employers Required to Post Notice of the Emergency Paid Sick Leave Act?

Yes. All private employers with fewer than 500 employees (and public employers with at least one employee) shall post and keep posted, in conspicuous places on the workplace premises, a notice with the requirements of the Emergency Paid Sick Leave Act. The model notice prepared by the Department of Labor can be found here and can be printed by an employer for use. However, we recommend that employers wait to print or download this poster until March 31, 2020 (the day before enactment), as the DOL may modify the poster until the date of enactment. 

The notice should be posted in places where notices to employees are customarily posted. Where employees are teleworking, an employer should email or direct mail this notice to employees, or post the notice on an internal or external website. If employees work in multiple buildings, the employer should post the notice in each building. The DOL is working to translate the notice into other languages and employers are not – at this time –  required to post the notice in multiple languages. This notice need not be shared with applicants or who have been laid off, but must be conveyed to any new hires.  

Are Employers Required to Pay for the Entirety of Emergency Paid Sick Leave Without Government Assistance?

Tax Credits for Paid Sick and Paid Family and Medical Leave provide employers a refundable tax credit equal to 100% percent of qualified paid leave benefits paid by an employer, subject to certain caps and offset against social security taxes paid by the employer.   

This law takes effect April 1, 2020, and employers are not likely eligible for tax credits for emergency paid sick leave provided prior to the effective date.

For more information on employers’ obligations to employees during the COVID-19 pandemic, suggested policies, or other employment issues, please contact your Lagasse Branch Bell + Kinkead attorney or any member of our COVID-19 taskforce: Jennifer Branch (jbranch@albblaw.com), Kelly Folger (kfolger@albblaw.com), Melissa A. Lewis (mlewis@albblaw.com), Lara P. Besser (lbesser@albblaw.com) and Jessica Yang (jyang@albblaw.com).