Families First Coronavirus Response Act Update
As you likely are already aware, the Families First Coronavirus Act passed yesterday; please find a summary of points below. Please note: some aspects of the Act may change before this takes effect, particularly since the front-loading of these benefits may be financially burdensome to employers. Our team is following the developments and is here to assist you through this challenging time.
Families First Coronavirus Response Act
On March 18 the Families First Coronavirus Response Act, FFCRA was passed to address concerns surrounding COVID-19. Included in the measures, to assist both employers and employees during this time are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. These measures are effective April 2, 2020 and expire December 31, 2020.
THE EMERGENCY PAID SICK LEAVE ACT (EPSLA)
The Paid Sick Leave Act requires employers with fewer than 500 employees to provide paid sick time to all of their employees— both full and part time, regardless of length of employment— where the employee is unable to work due to a need for leave because the employee is:
- Subject to a quarantine or isolation order related to COVID-19 or is caring for a family member (parent, spouse, children under 18, pregnant daughters, pregnant next of kin, grandparents, a disabled grandchild, or a disabled child, regardless of age) under such order * Advised by a doctor to self-quarantine due to COVID-19 or is caring for a family member under self-quarantine. * Experiencing symptoms and is seeking testing and diagnosis
- Caring for a child whose school or place of child care is closed due to COVID-19 precautions * Experiencing any other “substantially similar conditions”
Benefits for Employees:
- For self-care or quarantine, EPSLA is paid at the employees’ regular rate of pay, or minimum wage, whichever is greater, for two weeks (10 days) and is capped at $511 per day to a maximum of $5,110. Note: Existing sick leave offered may count toward the 10 days. * For care of another, EPSLA is paid at two thirds the employees’ regular rate of pay, for two weeks (10 days) and is capped at $200 per day to a maximum of $2,000 for care of another. Note: Existing sick leave offered may count toward the 10 days. * Paid sick leave is available for immediate use, regardless of how long an employee has been employed. * An employee may use paid sick leave under the EPSLA before using other leave. * An employer may not require an employee to use other paid leave before the employee uses his or her EPSLA leave. The law is specifically designed to ensure employees will not be required to use PTO or vacation time to deal with Coronavirus-related leave. * Employers may not discriminate or retaliate against employees who take paid sick leave. Violations of these provisions may result in penalties for failure to pay minimum wages consistent with the Fair Labor Standards Act. Under EPSLA, existing policies do not matter. Employers must not use existing policies and must provide benefits under the EPSLA. Employers are not allowed to require employees to utilize existing policies in lieu of EPLSA benefits.
THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (EFMLEA)
The EFMLEA is a proposed temporary amendment to the Family and Medical Leave Act (“FMLA”) that will apply to employers with fewer than 500 employees, and provides 10 weeks of paid leave for employees (the first 10 days are unpaid)—in addition to the 2 weeks of paid leave provided for by the Emergency Paid Sick Leave Act—for certain coronavirus-related issues. The EFMLEA will apply to any employee that has been employed for at least 30 days. The EFMLEA will provide job protected, paid leave because the employee is:
- Ordered to stay home by a doctor or a government official on the basis that the presence of the employee at work would jeopardize the health of others because the employee was exposed to the Coronavirus or the employee is symptomatic and the employee is unable to work remotely. * Caring for a family member (parent, spouse, children under 18, pregnant daughters, pregnant next of kin, grandparents, a disabled grandchild, or a disabled child ,regardless of age) that have been ordered to stay home by a doctor or a government order. * The employee needs to care for a child because daycare or school is closed, and the babysitter is unavailable due to the coronavirus. Benefits for Employees:
- EFMLEA allows for up to 12 weeks of leave, and 10 weeks of paid leave, at 2/3 of the employees’ regular rate of pay, up to $200 per day, to a maximum benefit of $10,000. * The first 10 days are unpaid, but the employee can overlap this with the 10 days of EPSLA.
- Employees may elect—but cannot be forced—to utilize accrued PTO, vacation or other sick leave during the initial 14 day period. Practically speaking, the employee will be paid for the first 2 weeks under the Emergency Paid Sick Leave Act, and once those benefits cease, the EFMLEA benefits will ensure continued payment of wages beyond the first two weeks. Employer Benefits
- Employers receive tax credits for 100 percent of what they pay out to employees, with certain limits. * For employers with 50 or fewer employees, the Secretary of Labor can exempt the business from these requirements. * Employers with fewer than 25 employees do not have to restore employees to their previous positions. What if the employer cannot afford to do this? Aside from taking out a loan from the Small Business Administration, at this point, the only other option would be to petition the Secretary of Labor for an exemption from the new law based on there being a substantial risk that you will go out of business if you are forced to comply with this new law.
Other Notable pieces of this bill:
Do EPSLA or EFMLEA apply if employees are unable to work solely due to business determinations or closures? Based on reading of the bill, it appears the answer is “no.” To qualify for paid sick or family and medical leave under the bill, employees must fall into one of the above leave situations. In such circumstances, such as closure, leave will be governed by state or local statutory sources and the company’s policies or collective bargaining agreements. Unemployment insurance.
The bill provides up to $1 billion of funding to states for unemployment benefits, and provides affected individuals with 13 additional weeks of unemployment benefits, and an additional 7 weeks in some states.
A model poster outlining benefits and employer responsibilities will be released soon by the Secretary of Labor, and it will need to be posted in a conspicuous place.
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