There are currently two COVID-19 related acts: The Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. I know everyone wants to know about the Payroll Protection Program under the CARES Act. We’ve been looking at it and talking to banks, but let’s address the Families First Act first because if you haven’t done the following, you need to act on that promptly.
The FFCRA requires companies under 500 employees to provide paid sick time of up to 80 hours for full-time employees who need time off for the following circumstances:
- Quarantine order by federal, state, or local authorities related to COVID-19;
- Employees who must self-quarantine as advised by a health care provider;
- Employees who are experiencing COVID-19 symptoms and are seeking medical diagnosis;
- Employees caring for an individual who is quarantined; and
- Employees unable to work due to school or child care closures, thus needing to care for children.
In general, paid leave should be provided at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order, or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. It can be provided at two-thirds the employee’s regular rate of pay because the employee is unable to work due to an actual and real need to care for an individual subject to quarantine (pursuant to federal, state, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
For employees that have been employed for at least 30 days, an employer must provide up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to an actual and real need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Part-time employees should be paid for the average number of hours they would normally work over a two-week period. Now before those of you who are truly small businesses freak out, there is a potential exemption for employers with fewer than 50 employees from providing paid benefits if it “would jeopardize the viability of the business.” Right now, the Department of Labor is specifically making sure that exemption applies to providing leave “due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.”
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (that also means unable to telework) due to a need for leave 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 related to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
I said “in general, paid leave should be provided at the employee’s regular rate of pay” above because there are some caveats. Employees should be paid at the higher of the following:
- Regular rate of pay
- Federal minimum wage
- Local minimum wage
However, the paid sick time benefits can be capped at $511 per day for the employee’s own care, and $200 per day to care for another individual.
Even if you are covered and have expenses, don’t completely freak out yet. Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA.
What to do? Well, everyone should post in a conspicuous place on its premises a notice of FFCRA requirements. Our conspicuous place is in a Notice Wiki on Teams.
If a job can be done remotely, let it be done remotely. Start working on how to do that right now if you haven’t already. And truly think about whether or not it can be done remotely, don’t knee-jerk that it can’t. After all, it could save you from having to pay employees for leave due to “Safer at Home” regulations.
DO NOT discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA. Also, DO NOT do any of those things if an employee files a complaint or institutes a proceeding under or related to the FFCRA. Just don’t.
If you are an employee, provide notice of the leave as much as practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time, so don’t check out if at all possible.
“When?” you ask. Well, these provisions will apply from April 1, 2020, through December 31, 2020. So if you haven’t acted already, you know the first item on your to-do list this week.