In connection with the COVID-19 pandemic, a new federal law has been enacted to provide paid leave for both COVID-19 illnesses as well as interruptions related to COVID-19 shutdowns of childrens’ primary school/child care facilities. The Families First Coronavirus Response Act (FFCRA) goes into effect on April 2nd and sunsets on December 31, 2020. In exchange for paying this leave, employers receive a payroll tax credit. Prior to April 2nd, the Secretary of Labor was tasked with issuing regulations on the FFCRA.
Small business (defined as under 50 employees) who would face an undue hardship in complying with the FFCRA (i.e. it would put them out of business) are excepted from the law. However, even if they were not, those same “small businesses” are immune from civil suits under this new law so even if it were violated, enforcement is left to the regulators and no civil suit would be actionable. The rest of the national business community will need to know and apply the law.
There are two important provisions in the FFCRA that are the subject of this article. The first is the expansion of the FMLA to include and address coronavirus-related childcare issues. The second is the manner in which the FFCRA provides emergency sick leave to an individual either stricken with COVID-19 or caring for a family member so stricken. This sick leave also includes an individual whose child’s school or child care has been closed due to COVID-19.
FFCRA-covered employers are those with 500 or less employees (an arbitrary and odd number). Covered employees are those who have worked at that employer for at least 30 days as either a full or part-time employee. To those covered employees, the FFCRA provides 12 weeks of job-protected FMLA leave to employees unable to work or telework as a result of the closure of their child’s school, nursery, or childcare center. For the first 10 days, this leave is unpaid; however, the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. The remaining balance of the 12 weeks will be paid at two-thirds the given employee's regular pay with a cap of $200 per day and $10,000 in the aggregate. Note that this provision requires the employer return the employee to work at the end of the leave unless the position was eliminated.
Similarly, the Emergency Paid Sick Leave provision of the FFCRA, also applies to employers with fewer than 500 employees (with the same possible exceptions applicable to the FMLA extension provisions). However, unlike the FMLA provision discussed above, employees need not have worked for the employer for any particular amount of time to qualify for this benefit. The Emergency Paid Sick Leave provides that eligible employees who cannot work as a result of one of the following three qualifying reasons are entitled to 10 days (80 hours) of paid sick leave at their regular rate of pay, with a cap of $511 per day if:
Alternatively, employees unable to work because of the following three reasons, are entitled to $200 per day ($2,000 in the aggregate), if:
It is important to note that state and municipal laws can tack on to these leave requirements. So, if an employee takes leave under either provision which also qualifies for a state law or municipal law, that latter leave can be taken first (for example, under the Cook County Paid Sick Leave Ordinance).