The Federal Government just passed a temporary law, the Families First Coronavirus Response Act. This Act was signed into law on April 1, 2020 and expires on December 31, 2020. The purpose of the Act is to enforce the provisions of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which were signed into law on March 18, 2020 in response to the declared state of emergency surrounding COVID19. The Federal Department of Labor, Wage and Hour Division, is the agency responsible for enforcement of the FFCRA.
This Act requires certain employers to provide paid sick leave to employees regardless of how long they have been employed and provide paid family leave to employees that have worked for them for at least 30 days. The leave must be caused by specific COVID-related needs for leave. Both full and part time employees are covered. The Act applies to employers with fewer than 500 employees that are not exempt. The number of employees are counted at the time leave is requested and includes, temporary and part-time employees.
It is important to initially note that businesses with fewer than 50 employees are exempt from these laws IF the paid leave requirements “would jeopardize the viability of the business as a going concern.” However, this conclusion does require the employer to also factor in that the Department of Treasury is supposed to reimburse the employer in the form of tax credits for 100% of every dollar paid under this Act as well as every dollar paid for employee’s health insurance premiums for the duration of the Act (April 1, 2020 until December 31, 2020).
There is no exemption application. The employer must determine that paying sick and family leave as required hereunder would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity, or employee’s absence (without replacement) would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities, or employer would be left with insufficient employees able, willing, and qualified at time and place needed to perform labor or services provided by the employee, and these labor or services are needed for business to operate at a minimal capacity.
If you have already missed compliance with this Act because you laid off or furloughed employees who missed work because of COVID-related needs for leave before the law was enacted, the Department of Labor has stated that it will give employers until April 17, 2020 to remedy violations and make employees whole, as long as the previous non-compliance was not willful. This means you have to bring them back on-staff, with any benefits they previously had, and provide back-pay, as well as any unexhausted paid leave time required by the Act. Remember, this only applies to people who need(ed) and request(ed) leave for COVID-related needs for leave, others laid off or furloughed because of lack of work, etc. are not eligible for paid leave under this Act.
COVID-related needs for SICK LEAVE:
Employee is subject to Federal, State or local quarantine or isolation order, related to COVID19, has been advised by a health care provider to self-quarantine related to COVID19, or is experiencing COVID19 symptoms and is seeking a medical diagnosis.
• Employer must pay a full-time employee up to 80 hours of sick leave and must pay a parttime employee sick leave up to the number of hours that employee work on average for two weeks.
• Pay shall be at the employee’s regular rate of pay or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 over two weeks.
Employee is caring for an individual subject to Federal, State or local quarantine or isolation order, related to COVID19, has been advised by a health care provider to self-quarantine related to COVID19.
• Employer must pay a full-time employee up to 80 hours of sick leave and must pay a part-time employee sick leave up to the number of hours that employee work on average for two weeks.
• Pay shall be at 2/3 the employee’s regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 over two weeks.
Employee has a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID19.
• Employer must pay a full-time employee up to 80 hours (two weeks) of sick leave and must pay a part-time employee sick leave for the number of hours that employee is normally scheduled to work over that period.
• Pay shall be at 2/3 the employee’s regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 over two weeks.
Employee is experiencing any condition substantially similar to those outlined above as specified by the Federal Department of Health and Human Services.
• Employer must pay a full-time employee up to 80 hours of sick leave and must pay a part-time employee sick leave up to the number of hours that employee work on average for two weeks.
• Pay shall be at 2/3 the employee’s regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 over two weeks.
COVID-related needs for FAMILY LEAVE:
After the two weeks of sick leave paid above, Employee has a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID19.
• Employer must pay a full-time employee up to ten (10) additional weeks of leave and must pay a part-time employee family leave for the number of hours that employee is normally scheduled to work over that period.
• Pay shall be at 2/3 the employee’s regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 over two weeks.
Finally, the Act requires Employers to download a poster from the DOL website. The poster must be conspicuously posted, may be distributed online, posted on employer website, directly mailed or e-mailed to employees. Here is the link for the poster: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
By. O. Machelle Morris
Legal Counsel for Allied Finance Adjusters
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