There is a new important law that has received little attention in the press. The Families First Coronavirus Response Act of 2020 (“FFCRA”) was signed into law on March 18, 2020. The FFCRA temporarily requires small employers with under 500 employees to provide certain emergency paid sick leave and family leave to employees dealing with the impact of COVID-19. The department of labor is in the process of producing regulations under this law. The Act is effective as of April 2, but the Department of Labor has said that they will give a 30-day grace period.

Under FFCRA, our full-time employees are entitled to 80 hours of paid leave for specified purposes related to COVID-19. Part-time employees are entitled to paid leave for the average number of hours the employee works during a two-week period. Employers must provide paid sick leave if the employee is unable to work or telework because the employee:

  • Is under a federal, state, or local quarantine or isolation order related to COVID-19.
  • Has been advised by a health care provider to self-quarantine because of COVID-19 concerns.
  • Is experiencing COVID-19 symptoms and seeking a medical diagnosis.
  • Is caring for an individual subject to a quarantine or isolation order or advised to self-quarantine because of COVID-19 concerns.
  • Is caring for a son or daughter where, due to COVID-19 precautions, the child’s:
    • school or place of care has been closed.
    • or a childcare provider is unavailable.
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Leave is available for immediate use, regardless of how long the individual has been employed by the employer. Employers cannot require an employee to:

  • Use other available paid or unpaid leave before allowing paid leave available under this emergency provision.
  • Find a replacement to cover the employee’s hours or shift before allowing paid leave.

If full-time employee is caring for a child whose school or place of care is closed (or child care provider is unavailable), she 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.

After the first use of leave, employers may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time. Unused leave cannot be carried over to the following year.

The amount of pay depends on the reason for  the leave. Leave is paid at 100% of the employee’s regular rate for an employee who is:

  • Quarantined under a government order or advice of health care provider
  • Experiencing COVID-19 symptoms and seeking a medical diagnosis.

Leave is paid at two-thirds of the employee’s regular rate of pay and capped at $200 per day and $2,000 in total (not including additional emergency paid family leave) for leave needed:

  • To care for another individual under quarantine or a child under 18 whose school or childcare provider is closed or unavailable because of COVID-19; or
  • If the employee is experiencing a substantially similar condition.

Employers can claim a tax credit against the employer’s portion of Social Security taxes for the emergency paid sick leave wages paid to employees, subject to the same per-employee caps depending on the reason for the leave.

FFCRA permits the Secretary of Labor to issue regulations to “exempt small businesses with fewer than 50 employees from the” paid leave requirements of the Act “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” But don’t expect too much leniency in the regulations.

If you have any questions about how FFCRA applies to your business, call Howard Lewis & Petersen. The law is new, and we are still waiting on temporary regulations.

Posted April 14th, 2020