On March 18, 2020, Congress passed, and the President signed, The Families First Coronavirus Response Act (“FFCRA”) related to COVID-19 relief and preparedness. The attached article by a friend of our firm, Rose-Ellen Fairgrieve of Fairgrieve Law Office, discusses private employers’ new paid sick leave and FMLA requirements. We are re-blogging it here for our small business and startup clients.
Employer Mandates in the Families First Coronavirus Response Act
By: Rose-Ellen Fairgrieve of Fairgrieve Law Office
March 20, 2020 Message from Rose-Ellen
Congress passed, and the President signed, The Families First Coronavirus Response Act on Thursday, March 18, 2020 (“FFCRA”). The new law takes effect on April 2, 2020. There are many provisions within this bill related to COVID-19 relief and preparedness. This article only discusses the employers’ new paid sick leave and FMLA requirements as they pertain to private employers. Note there are specific provisions related to multi-employer collective bargaining agreements, which are not discussed here.
In summary, if you are a California employer with between 1 and 500 employees, you will need to pay employees who cannot work due to the shelter in place mandate (or other specified reasons) an additional two weeks of sick leave beyond what you already provide under state or local law. Additionally, employees who cannot work because they are caring for their children whose schools are closed are entitled to 12 weeks of protected leave, up to 10 of which the employer must pay.
Below I try to provide the important details of the employer-mandate provisions without getting too granular. I can’t describe here how it applies in every circumstance. Don’t hesitate to reach out if you have questions.
I hope you all are staying well.
Paid Sick Leave
The FFCRA contains the Emergency Paid Sick Leave Act (“the Act”), which requires that employers provide paid sick leave. The new sick leave requirement applies to employers who have 1-500 employees.
The Secretary of Labor is authorized to issue regulations to allow a hardship exemption for businesses with fewer than 50 employees, but the authority seems to be limited to situations where the absence is due to the employee having to care for their child because the child’s school is closed or the child care provider is unavailable due to COVID-19. We will have to see what the scope of the exemption will be once the regulations are issued.
Employers whose employees are health care providers or emergency responders may elect to exclude those employees from sick leave. Additionally, the Secretary of Labor is authorized to issue regulations to allow such employers to opt out.
The Act requires that employers shall provide paid sick leave if employee cannot work because of one of six reasons. Essentially it covers just about any absence that is caused by COVID-19.
The listed reasons are:
Amount of Paid Sick Leave
Employers must pay 80 hours of sick leave for full time employees. For part-time employees, employers must pay the number of hours that the employee works, on average, over a 2-week period. If the employee’s hours fluctuates from week to week, the Act contains a formula for determining how many hours must be paid.
Employees’ rights to paid sick leave under this Act does not affect their right to paid sick leave or other paid leave under existing laws or employer policies. An employer cannot require an employee to use other paid leave before the employee receives paid sick leave under this law.
Rate of Pay for Paid Sick Leave
The rate at which sick leave must be paid depends on the reason for the absence.
If the reason for the absence is one of the first 3 above, that is: the employee is subject to federal, state, or local quarantine or isolation order related to COVID-19; the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, then the rate for paid sick leave is the greatest of: the employee’s regular rate of pay, the FLSA minimum wage; or minimum wage rate under state or locality, whichever is more. Leave for these reasons is capped at $511 per day or $5110 in aggregate.
If the reason for the absence is one of the reasons described in 4, 5, or 6, above, that is: the employee is caring for an individual who is subject to an order as described in 1 or 2, above; the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or the employee is experiencing any other substantially similar condition specified by the Secretary of the Treasury and the Secretary of Labor, then the rate of pay is 2/3 of the greatest of the rate described in the prior paragraph. Leave for these reasons is capped at $200 per day or $2000 in aggregate.
Other Key Terms
It is unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee who:
Penalties for Violations
An employer who violates paid sick leave requirements is subject to the same penalties that apply as if it had failed to pay minimum wage under the FLSA. Such employer can be criminally prosecuted and fined up to $10,000 if convicted. If convicted of the same offense a second time, the employer can be imprisoned for up to 6 months. Additionally, employers are subject to civil lawsuit. An employer who has failed to pay sick leave can be ordered to pay the unpaid amount, plus an equal amount as liquidated damages. An employer who unlawfully terminates an employee under the Act can be ordered to reinstate the employee, and to pay lost wages. Plaintiffs who bring a lawsuit to recover damages under the Act are entitled to recover their attorneys’ fees and costs.
Protected Partially-Paid Leave (EFMLA)
The FFCRA also includes the Emergency Family and Medical Leave Expansion Act (“EFMLA” or “the Law.”) The Law extends 12 weeks of protected leave, 2 weeks unpaid and up to 10 weeks paid, to employees as described below.
In applicable situations, employees are entitled to take 12 weeks of leave, and upon the end of the leave period, are entitled to be restored to the position they held when their leave commenced, or to a position that has equivalent employment benefits, pay, and other terms and conditions of employment. The first ten days of the leave is unpaid. The remainder of the leave is paid by the employer.
The EFMLA applies to employers with fewer than 500 employees. The Secretary of Labor has authority to issue regulations that will provide an exemption for businesses with fewer than 50 employees if the imposition of such requirements would jeopardize the viability of the business as a going concern.
Employers with fewer than 25 employees may be relieved of the duty to restore the employee to their prior position if 1) the employee’s position no longer exists due to economic conditions or other changes in the employer’s operating conditions that affect employment and are cause by a public health emergency during the period of the leave; 2) the employer makes reasonable efforts to restore the employee to an equivalent position, and 3) if, within one year, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available.
EFMLA leave is available to employees who have been employed for at least 30 calendar days. An employee is entitled to up to 12 weeks of leave within a 12-month period for any FMLA-qualifying reason. The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees.
The EFMLA allows for protected leave “because of a qualifying need related to a public health emergency.” This means when an employee is unable to work (or telework) due to a need to leave to care for the employee’s child under 18 years old if the child’s school or place of care has been closed, or the child care provider is unavailable due to a public health emergency. A public health emergency means an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
Amount of pay
During the first 10 days of leave, which is unpaid, the employee may use accrued vacation, personal leave, medical, or sick leave for unpaid leave.
After 10 days, employer shall provide paid leave. The employer must pay not less than 2/3 of the employee’s regular rate of pay based on the usual number of hours the employee is scheduled to work. The pay is capped at $200/day and $10,000 total in aggregate.
This blog does not constitute solicitation or provision of legal advice, and does not establish an attorney-client relationship. This blog should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter in a timely manner, as statutes of limitations may bar your claim.