Employee Rights and Employer Obligations under the Coronavirus Emergency Laws
The Families First Coronavirus Response Act Questions and Answers
On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law to address the COVID-19 pandemic. Among its provisions, the Act generally requires that employers with fewer than 500 employees provide up to 80 hours of paid sick and paid leave to employees affected by COVID-19, provides covered employers with a corresponding employment tax credit, and temporarily expands coverage under the Family and Medical Leave Act (FMLA) to include leave related to the coronavirus.
Whether you are an employee trying to understand your rights under the Act or an employer seeking a better understanding of your obligations, we can help. This is a dynamic situation and individual circumstances may vary. This update is a starting point only and is intended for informational purposes only. Barrett Law Offices is available to assist you with any questions you may have regarding developments related to the COVID-19 outbreak. For additional information please call (919) 999-2799 or email either firstname.lastname@example.org or email@example.com.
Q: When does the Act go into effect?
A: The Act takes effect April 1, 2020, and remains in effect until December 31, 2020.
Q: What does the Act cover in general?
A: The Act addresses a number of issues related to the coronavirus. The provisions that most directly affect employers and employees are expanded coverage under the FMLA, the establishment of paid FMLA leave and paid sick leave and enhanced unemployment benefits.
Q: Is my company covered by the paid FMLA and paid sick leave provisions that are set forth in the Act?
A: The paid FMLA and paid sick leave provisions apply only to private employers with less than 500 employees and certain public employers.
Q: Are any employers with less than 500 employees or employees exempted from coverage?
A: Both the paid FMLA and sick leave provisions of the Act allow employers of healthcare providers or emergency responders to elect to exclude those employees from coverage. In addition, both provisions authorize the Secretary of the Department of Labor to issue regulations exempting small businesses with fewer than 50 employees when coverage would jeopardize the ongoing viability of the business.
We anticipate that the Department of Labor will issue emergency regulations within the next thirty days addressing the extent to which such categories of employers will be excluded and any requirements that must be met for an employer to be excluded.
Q: Assuming my employer is not exempted, am I automatically covered by the Act?
A: All employees of private employers with less than 500 employees are covered by the paid sick leave provisions of the Act. The FMLA provisions apply to employees who have been employed for at least 30 calendar days.
Q: What are the sick leave benefits provided under the Act?
A: The Act provides two weeks (up to 80 hours) of paid sick leave your regular rate of pay if you are quarantined (pursuant to a federal, state or local government order or on the advice of a healthcare provider) due to COVID-19 and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
The Act also provides two weeks (up to 80 hours) of paid sick leave at two-thirds your regular rate of pay if you are unable to work because you need to care for an individual subject to quarantine, care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19; or if you are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Paid sick leave is capped at varying amounts depending upon the reason for its use.
Q: What if my company already has an existing sick leave policy?
A: Paid sick leave under the Act is in addition to any existing sick leave provided by the employer. An employer may not require an employee to use other paid leave before the employee uses the paid sick time under the Act. Nothing expressly prohibits employers from changing their leave programs after the law is enacted; however, the employee relations impact of doing so should be carefully considered.
Q: What are the expanded FMLA benefits provided under the Act?
A: The Act amends the FMLA to allow all covered employees to take 2 weeks of unpaid leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. In addition, covered employees who have been employed for at least 30 calendar days are permitted to take an additional 10 weeks of paid leave at two-thirds their regular rate of pay to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.
Paid FMLA leave is capped at $200 per day or $12,000 in aggregate (over a 12-week period – two weeks of paid sick leave followed by up to 10 weeks of paid expanded FMLA leave).
Q: Am I entitled to an additional 12 weeks of leave under the Act or is my total leave for all FMLA reasons still limited to 12 weeks?
A: Total leave under the FMLA, including leave under the Act and any previously existing FMLA-qualifying situations, is limited to 12 weeks.
Q: How will my company be able to pay for this leave?
A: Covered employers will receive a dollar for dollar reimbursement through tax credits for all qualifying wages paid pursuant to the Act.
Q: Do I have to do anything to notify my employees of their rights under the Act?
A: All covered employers must post a notice (which can be obtained from the U.S. Department of Labor’s website) of the Act’s requirements in a conspicuous place on its premises.
Q: If my employer closed my worksite before April 1, 2020, can I still get paid sick leave or expanded FMLA leave?
A: No. If prior to the Act’s effective date, your employer sent you home and stopped paying you because it does not have work for you to do, you will not get paid sick leave or expanded FMLA leave but you may be eligible for unemployment insurance benefits.
Q: Is my job protected if I take leave?
A: Generally, yes. However, employers with less than 25 employees are not required to provide job-protected leave if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency provided that: (1) the employer makes reasonable efforts to restore the employee to an equivalent position; and (2) the employer makes reasonable attempts to contact the employee for a period of one year following a certain period if an equivalent position becomes available.
This material is provided for informational purposes only. It is not intended to constitute legal advice or create a client-lawyer relationship between Barrett Law Offices and any person who receives or reviews this information. You should consult with legal counsel before taking any actions based on the information contained in this material.