A temporary rule issued April 1 provides answers to at least some questions employers have regarding relief offered through the Families First Coronavirus Response Act (FFCRA) — a measure that provides both paid sick leave and paid family and medical leave for workers affected by the COVID-19 pandemic.
The rule, which will be in effect through December 31, outlines how both workers and employers will benefit from the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, both part of the FFCRA.
The new temporary rule provides answers to at least some of the questions employers have about how those payments and reimbursements will work, according to Richard Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina.
“One question that many of our clients had is what documentation they can require from an employee to verify that an emergency sick leave is required. The regulations provide an answer,” Rainey says. “The practical question is how far you are willing to go to make employees to jump through these hoops or whether you err on the side of accepting employee claims at face value.”
Rainey also points out that it’s easy for employers to focus on whether an employee qualifies for emergency sick leave and the enhanced family and medical leave the law provides.
“But what may be even more important is to make sure the employer qualifies for a tax credit for these benefits,” Rainey says. The new regulations provide that employers may request employees to provide material the employer needs to support a request for tax credits. “If the employee does not comply, the employer is not required to provide leave,” he says.
Emergency Paid Sick Leave Act (EPSLA). This part of the FFCRA requires employers to provide paid sick leave to employees unable to work for six reasons related to COVID-19. The temporary rule lists those reasons for employees as:
- Being subject to a federal, state or local quarantine or isolation order;
- Having been advised by a healthcare provider to self-quarantine;
- Experiencing COVID-19 symptoms and seeking a medical diagnosis;
- Caring for an individual who is subject to a quarantine or isolation order;
- Caring for a child whose school or day care has been closed by COVID-19; or
- Experiencing any other substantially similar condition.
Among other things, the rule states covered employers that fail to provide the required paid sick leave are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act. The EPSLA also prohibits employers from discharging, disciplining or otherwise discriminating against an employee who takes paid sick leave under the Act.
The law covers employers with fewer than 500 employees, but employers with fewer than 50 employees may apply for an exemption if the law’s requirement would “jeopardize the viability of the business as a going concern.” The law applies to employees of covered employers regardless of how long an employee has worked for an employer, except that employers may exclude employees who are healthcare providers or emergency responders from taking paid sick leave.
The EPSLA entitles full-time covered employees to up to 80 hours of paid sick leave. Part-time employees are generally entitled to up to the number of hours that they work on average over a two-week period. The law provides that eligible employees who are subject to a quarantine or isolation order or who are experiencing symptoms and seeking a diagnosis be paid their full pay up to $511 per day and $5,110 in the aggregate.
Employees taking paid sick leave for other qualifying reasons are to be paid two-thirds of that amount up to $200 per day and $2,000 in the aggregate. The rule says an employer may not require an employee to use other paid leave provided by the employer before using the paid sick leave provided by the law.
Emergency Family and Medical Leave Expansion Act (EFMLEA). This part of the FFCRA requires employers to provide paid family and medical leave to eligible employees who can’t work because they are caring for a child whose school or place of care is closed because of the pandemic.
The new rule explains eligible employees may choose to use, or an employer may require that they use, any paid time off offered by the employer concurrently with the expanded family and medical leave provided in the law. It also spells out that employees should provide notice to the employer as soon as practicable when the leave is foreseeable.
The rule also explains that the law defines when employees taking the leave are entitled to be restored to their positions, and employers with fewer than 25 employees are exempt from that requirement under certain circumstances.
The rule says the EFMLEA applies to employees of covered employers if those employees have been employed by the employer for at least 30 calendar days. This includes employees who were laid off or otherwise terminated on or after March 1, had worked for the employer for at least 30 of the prior 60 calendar days, and were subsequently rehired or otherwise reemployed by the same employer.
As with the EPSLA, employers may exclude employees who are healthcare providers or emergency responders from taking expanded family and medical leave.
The EFMLEA entitles eligible employees of covered employers to take up to 12 weeks of leave:
- The first two weeks are unpaid, but an employee may use paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for those two weeks.
- The remaining 10 weeks must be paid at two-thirds the employee’s regular rate of pay.
The total EFMLEA payment per employee for the 10-week paid period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
View the rule at: https://www.dol.gov/agencies/whd/ffcra