The federal Families First Coronavirus Response Act (“FFCRA”) goes into effect on April 2, 2020 and includes three separate provisions expanding family and sick leave requirements related to COVID-19. We describe the new laws here briefly, but please contact your attorney if you have any questions about implementing or navigating these policies in your business.
A key element of the new mandated employment benefits is that they apply even to the smallest employers who are not currently subject to the requirements of the Family Medical Leave Act (“FMLA”). The DOL has the authority to adopt exemptions for small businesses of less than 50 employees if the leave requirements would jeopardize the viability of the business, but has not adopted such exemptions as of the date this was written.
Please note: All employers with less than 500 employees must post a conspicuous notice related to these new family and sick leave provisions of the FFCRA. The Department of Labor has provided a notice here.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) expands the FMLA to provide job-protected leave to employees who miss work due to a “qualifying need related to a public health emergency” (in other words, COVID-19).
- Applies to: All employers with fewer than 500 employees (regardless of geographic location of employees) and all employees who have worked at least 30 days for the employer.
- Requirement: With certain exceptions, employees may take up to 12 weeks of protected leave if unable to work (or telework) due to a need for leave to care for the employee’s minor child if the child’s school or place of care has been closed, or the child-care provider is unavailable. This is a fairly narrow category of employees.
- Wages: The first 10 days of leave are unpaid, though the employer may apply paid time off (accrued sick days, medical, and vacation days) during that period. The employer is responsible for paying the employee over the next 10 weeks at two-thirds pay for the average number of hours the employee would otherwise work, with a cap of $200 per day and $10,000 total.
- Job Protection: Like FMLA, an employer
must give an employee his or her position back following the protected leave
and cannot discriminate or retaliate against the employee for using the leave.
- Small business exception: Employers with fewer than 25 employees are not required to restore the job of an employee who takes leave under the new law if: (i) the employee’s position no longer exists due to economic conditions and (ii) the employer makes reasonable efforts to restore the employee to an equivalent role.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (“EPSLA”) requires private employers with fewer than 500 employees to provide temporary paid sick leave to employees who are unable to work due to certain reasons related to COVID-19.
- Applies to: All employers with fewer than 500 employees and all employees (regardless of how long they have been employed).
- Employers must provide paid leave for
the following reasons:
- a federal, state or local quarantine or isolation order restricts the employee;
- a health care provider has advised the employee to self-quarantine;
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- the employee is caring for someone who has been advised or ordered to quarantine;
- the employee is caring for a son or daughter whose school or place of care has closed, or whose child-care provider is unavailable, because of COVID-19 precautions; or
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
- Wages: Employers must pay sick time equal
to the number of hours that the employee works, on average, over a two-week
period. Employers cannot apply an employee’s accrued paid time off (medical,
sick or vacation time) before paying sick leave under the EPSLA.
- If sick time is needed because of any of the first three reasons set forth above, then the employee’s paid sick time is capped at $511 per day and $5,110 total.
- If sick time is needed for any other reasons set forth in EPSLA, the employee’s paid sick time is capped at $200 per day and $2,000 total.
- Leave under both EFMLEA and EPSLA: EPSLA can be applied in combination with EFMLEA by employees who qualify for leave under both so as to cover the first 10 days of unpaid leave under the EFMLEA.
Tax Credits for Employers
The FFCRA provides a refundable payroll tax credit covering 100% of family leave paid to employees, up to of $200 a day and a total of $10,000 per employee, and 100% of sick leave wages paid to employees, up to a maximum wage of $511 per day and a total of $7,156 per employee. The credits may be claimed quarterly but are not available to employers who receive credit under Internal Revenue Code Section 45S for paid family and medical leave.
As of the date this was written, the State of Maine was considering but had not yet adopted new state requirements modifying required employment benefits.
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