Federal Coronavirus Updates

Federal Coronavirus Employment-Related Updates


Under the Families First Coronavirus Response Act (FFCRA or Act) certain employers are to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.

The Department of Labor’s Wage and Hour Division (WHD) administers and enforces the FFCRA requirements from the effective date of April 1, 2020 December 31, 2020.

Covered Employers

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.

Title II of the Family and Medical Leave Act was not amended by the FFCRA, and therefore most employees of the federal government are not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees whose viability is jeopardized due leave requirements to school closings or child care may qualify for exemption.

Paid Sick Leave

FFCRA generally provides that covered employers must provide all employees paid sick leave related to COVID-19 as follows:

The first two (2) weeks

Employers must make paid sick leave available immediately to employees who qualify.

Employer are not required to pay all employee 100% of their regular wage rates while they take COVID-19 leave. Employers must allow employees to take paid sick leave and pay them wage rates as follows:

  • 100% of the employee’s regular rate of pay when the employee is unable to work because the employee is:
    • quarantined pursuant to Federal, State, or local government order
    • quarantined pursuant to the advice of a health care provider, and/or
    • experiencing COVID-19 symptoms and seeking is a medical diagnosis; or
  • two-thirds (2/3) of the employee’s regular rate of pay when the employee is unable to work because:
    • of a bona fide need to care for an individual subject to quarantine pursuant to Federal, State, or local government order
    • to care for an individual subject to quarantine pursuant to the advice of a health care provider)
    • care for a child (under 18 years of age) whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or
    • the employee is experiencing a substantially similar condition to the conditions related to COVID-19.

The next ten (10) weeks

Fewer employees qualify for an additional ten (10) weeks of paid sick leave which is only available after the initial two (2) week period discussed above.

To be eligible for the additional ten (10) weeks of paid sick leave, an employee must be unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Moreover, employers only have to pay employees who take the additional ten (10) weeks of sick leave two-thirds (2/3) of their regular wage rate while they are absent. Employees may take the additional ten (10) weeks of Covid-19 sick leave intermittently.

Qualifying Reasons for Leave

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or 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 his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons;
  • is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
  • Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19.

Duration of Leave

If the employee is under quarantine or advice of a health care provider or pursuant to Federal, State, or local government order related to COVID-19;
or is seeking a medical diagnosis for Covid 19 symptoms.

A full-time employee is eligible for up to 80 hours of leave, and

A part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

If the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay

Employees on leave due to quarantine or advice of a health care provider or pursuant to Federal, State, or local government order related to COVID-19; or is seeking a medical diagnosis for Covid 19 symptoms: the employee shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

Employees on leave due to caring for an individual seeking a medical diagnosis for Covid 19 symptoms or whom is quarantined pursuant to advice of a health care provider or Federal, State, or local government order related to COVID-19; or is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services: the employee shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

Employees on leave due to caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons: the employee shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

Documentation Supporting Employee’s Request

An employer may require an employee to provide documentation with the following information before the employer will allow the employee to take paid sick leave:

  • The employee’s name
  • The date(s) for which the leave is requested
  • The qualifying reason for the leave
  • An oral or written statement that the employee is unable to work because of a permitted reason

Employers may also require employers to provide documentation with the following information relative to the reason for which they are requesting to take paid sick leave:

  • The name of the government entity that issued the quarantine
  • The name of the health care provider who advised the employee to self-quarantine
  • The name of the health care provider who advised the individual the employee will be taking care of to self-quarantine
  • The name of the child being cared for, the name of the school or childcare provider, and a representation that no other suitable person will be caring for the child while the employee is taking paid sick leave
  • Any other materials needed from the employer to support tax credit claims (if the material provided by the employee is insufficient to meet this standard, employers do not need to allow the employee to take paid sick leave)

Under 50 Employees Exemption

An employer with fewer than 50 employees may decide not to provide employees paid sick leave if allowing employees to take otherwise required leave would jeopardize the viability of the business as a going concern. A business may decide to deny employees the otherwise required paid sick leave if an authorized officer of the business has determined that:

  • Granting the leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee(s) requesting to take leave would expose the employer to substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; OR
  • There are not sufficient employees 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(s) requesting to take leave, and these labor or services are needed for the small business to operate at a minimal capacity.

An employer must document the reasons why they have decided not to provide sick leave to employees and retain it in its files. It does not need to be submitted to any government agency.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the FFRCA for a qualifying reasons, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

Employer Notice

Each covered employer must post in a conspicuous place on its premises a notice of “Employee Rights Paid Sick Leave and Expanded Family and Medical Leave Under the Family First Coronavirus Response Act.”

Prohibitions

Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA, files a complaint or institutes a proceeding under or related to the FFCRA.

Reinstatement Requirements

Regardless of the reason paid sick leave is taken, 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. To be able to deny an employee restoration to their previous job, an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested to deny restoration to employment.

Unless an exception applies, an employer must reinstate employees returning from sick leave to their prior position. An employer cannot refuse to reinstate or delay reinstatement because they have replaced the employee with another employee. The employer should consider the replacement employee to be temporary pending the employee’s return from leave.

Initial 10-day leave

An employer may deny job restoration to key employees, as defined under the FMLA(§825.217of this chapter) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.

10-week extended leave

An employer who employs fewer than twenty-five employees may deny job restoration to an eligible employee who has taken all or part of their entitlement to the ten (10) weeks of extended paid sick leave if:

  • the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a Public Health Emergency during the period of leave;
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
  • Where the reasonable efforts of the employer to restore the employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee during a one-year period, if an equivalent position becomes available. The one-year period begins on the earlier of the date the leave related to a public health emergency concludes or the date twelve weeks after the employee’s leave began.

Penalties and Enforcement

Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217.

Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act.

The Department will observe a temporary period of non-enforcement for the first 30 days after the FFCRA takes effect, so long as the employer has acted reasonably and in good faith to comply.

The CARES Act includes many provisions to support American families, small businesses, and the economy while the nation works its way through the COVID-19 outbreak. Key provisions include the following:

Ensures that all testing for COVID-19 is covered by private insurance plans, with free coverage of a vaccine within 15 days for COVID-19 when such a vaccine is available.

For eligible small businesses, sole proprietors, independent contractors, and other self-employed individuals, the Act provides $349 billion through federally backed loans under a modified and expanded Small Business Administration (SBA) 7(a) loan guaranty program. These loans can be used to pay for utilities, rent, mortgage, and payroll. Borrowers are eligible for loan forgiveness for the first 8 weeks of the loan. The Small Business Administrator has no more than 15 days after the date of enactment to issue regulations.

The measure provides $500 billion to the Department of Treasury’s exchange stabilization fund for use in loans, loan guarantees, and other investments for distressed businesses that do not qualify for the small business relief. This includes direct lending of $25 billion for passenger air carriers, $4 billion for cargo air carriers, and $17 billion for businesses determined to be important to national security. The remaining $454 billion is eligible for direct lending to distressed businesses meeting specified criteria. These provisions also include prohibitions on recipients of relief engaging in stock buybacks, and all loans must be used to retain at least 90 percent of the workforce.

For those who lost employment because of the pandemic, the measure provides robust unemployment insurance, including for self-employed, independent contractors, and those with limited work history. The assistance will include an additional $600 per week for each recipient and provides an additional 13 weeks of benefits to those who remain unemployed after state unemployment benefits are no longer available.

U.S. individual taxpayers with an adjusted gross income of up to $75,000 ($150,000 joint) are eligible for a full $1,200 ($2,400 joint) rebate, and an additional rebate of $500 per child. Americans will not be required to do anything to receive a rebate check, as the IRS will use a taxpayer’s 2019 tax return or their 2018 return if they have not yet filed. The rebate is reduced by $5 for each $100 of the taxpayer’s income that exceeds $75,000 and completely phases out at $99,000. These and other relief and appropriation provisions are spread across 880 pages and various sections of the legislation.


FREE EMAIL UPDATES
Employment laws can change at a moments notice. Sign up for Employment Law Handbook’s free email updates to stay informed.