President Trump just signed into the Family First Coronavirus Response Act (“FFCRA”) as an emergency measure to assist people during the Coronavirus Covid-19 health crisis. The FFCRA includes two important Acts, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) as well as the Emergency Paid Sick Leave Act (“EPSLA”). Both the EFMLEA and the EPSLA are effective April 1, 2020 through December 31, 2020. Both the EFMLEA and the EPSLA allows an employer to get tax credits when they have provided paid emergency sick leave or paid FMLA leave.

HR needs to step up to quickly ensure compliance. Below we have provided you with questions and answers to assist you in understanding your compliance obligations under both Acts.

Emergency Family and Medical Leave Expansion Act

The EFMLEA amends the federal Family and Medical Leave Act to allow for eligible employees to take paid leave for certain reasons related to the Coronavirus COVID-19 set forth below.

Who is a Covered Employer for Emergency Paid Family Leave?

An employer that has less than 500 employees. Employers with more than 500 employees are not covered. Apparently, Congress believes that larger employees already offer some form of paid leave equal or in excess of what this law requires.

Who is Eligible to take Paid FMLA under the EFMLEA?

An eligible employee is a full-time or part-time employee who has been employed by the employer for 30 days. Of course, this is a significant departure from the requirement under the FMLA in which an eligible employee has to be employed for 12 months and have worked 1250 hours in the preceding 12-month period at a facility with 50 or more employees in a 75-mile radius.

For What Reasons Can Employees Take Leave?

This emergency measure adds to the reasons for which an employee can take regular FMLA leave, that they can now take it for a “qualifying need related to a public health emergency.” However, a public health emergency is limited to only the following situations:

• Where the employee requires leave because they are unable to work because the employee must care for his or her child (as defined under the FMLA) whose school is closed; or
• Where the employee requires leave because they are unable to work because the employee must care for his or her child if their childcare provider is unavailable due to a public health emergency.

What is Required to Be able to take Paid FMLA Leave?

An employee may only take this paid FMLA leave when they are unable to work onsite or remotely due to the two reasons set forth above.

Who is a Qualified Family Member for Whom the Employee Can take Emergency Paid FMLA Leave to Care For?

Spouse

Parent

• Biological parent
• Foster parent
• Adoptive parent
• Step-parent
• Parent in-law
• Parent of employee’s domestic partner
• Legal guardian), and

Pregnant woman

Senior citizen

Individual with a disability

Individual who is the employee’s:

oChild (regardless of age)(Child no longer defined as under 18 years of age or

oNext of kin (or a person for whom the employee is the next of kin)

oGrandparent

oGrandchild.

How Much would Workers Receive as Pay?

An eligible employee would receive after 10 days of unpaid leave, up to two-thirds of their regular rate of pay based upon the number of hours that employee would otherwise be normally scheduled to work. During the 10 days of unpaid leave, an employee can use any accrued leave currently available to them. However, an employer cannot require that the employee use their other paid leave during the 10-day period of unpaid leave.

What if the Employee’s Regular Number of Hours Worked Varies?

If the employee’s regular number of hours worked varies from week to week, then the employee’s benefits will be calculated based on the following: (1) the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the leave begins (including hours for which the employee took leave of any type), or (2) if the employee did not work over that period, the reasonable expected schedule, as established at the time of hiring.

What is the Cap on the Paid Family Leave Benefits an Employee Can Receive?

The cap provides that “[i]n no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.”

Who Can an Employer Exclude from Paid FMLA?

Under this emergency paid FMLA, employers would be able to exclude but would not have to exclude:

• Health care workers
• Emergency responders

Any provision for Excluding Small Businesses?

A small business that has less than 50 employees would be able to apply for a financial hardship waiver from the leave provisions affecting workers whose children's schools have closed.

Does the Employer Have to Reinstate Employee at End of the Emergency Paid FMLA Leave?

Yes, the employer would have to reinstate the employee at the end of the emergency paid FMLA leave unless the employer has less than 25 employees.

If an employer has less than 25 employees then they would not need to reinstate if:

the employee takes Public Health Emergency Leave; AND

the position held by the employee when the leave commenced does not exist due to economic conditions or other changes that (i) affect employment, and (ii) are caused by a public health emergency during the leave; AND

the employer makes reasonable efforts to reinstate the employee to the original position or another equivalent position with equivalent benefits, pay, and other terms and conditions of employment; AND

reasonable efforts to reinstate fail, but the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the one-year period commencing from the earlier of (i) the date the qualifying need for Public Health Emergency Leave ends, or (ii) 12 weeks after the employee began Public Health Emergency Leave.

Emergency Paid Sick Leave Act

In addition to the paid FMLA leave, Congress also passed as part of the Family First Coronavirus Response Act, the “Emergency Paid Sick Leave Act” (EPSLA).

Who is an Eligible Employee Under EPSLA?

Any employee that works for the employer. The law does not require that they have worked for 30 days, 12 months or any other requirement. Therefore, on day 1 of employment an employee would be eligible for EPSLA leave.

For What Reasons Can an Employee Take EPSLA?

1.the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

2.the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

3.the employee is experiencing the symptoms of coronavirus and needs to obtain a medical diagnosis or care;

4.the employee is caring for or assisting an individual who is subject to an order described in (1) above or has been advised to self-quarantine, as described in (2) above;

5.the employee is caring for a son or daughter (as defined under the FMLA) because such son or daughter’s school or place of care has been closed, or such son or daughter’s care provider is unavailable due to coronavirus; or

6.the employee 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

How Much Paid Sick Leave Can an Employee Receive?

Full-Time Employees

A full-time employee would be able to receive 80 hours of pay at their regular rate of pay for reason 1,2 and 3 set forth above. Basically, for their own coronavirus issues. If the employee is taking the leave for reasons 4,5, or 6 above, to care for a qualified family member impacted by the Coronavirus, then they may only receive up to 2/3 their regular rate of pay.

Part-Time Employees

Part time employees would only receive pay for their regular number of hours they usually work over a two-week period.

Are there Caps on the Amount of Paid Sick Leave an Employee Can Receive?

Yes, there are caps, as follows:

$511 per day and $5,110 in the aggregate when paid sick leave is taken for any of the reasons set forth in (1), (2), or (3), above, and

$200 per day and $2,000 in the aggregate when paid sick leave is used for any of the reasons set forth above in (4), (5), or (6).

No Retaliation

Retaliation against any employee for taking EPSAL is prohibited.

Ensuring Compliance

Employers need to get moving with regard to ensuring compliance by April 1, 2020. Not only should you ensure your practices are consistent with the requirements of this law, but in addition you should amend your FMLA policy with the requirements of the new law and draft a new EPSAL policy. Of course, you still have to comply with any requirements you may have under the regular FMLA and state paid family and paid sick leave laws. We at HR Learning Center LLC can help with any questions you may have or drafting of these policies. Feel free to contact us at info@hrlearningcenter.com or 914-417-1715.