On Wednesday, March 18, 2020, Congress passed, and President Trump signed, the Families First Coronavirus Response Act (“FFCRA”). This set of FAQs is intended to answer many of the questions employers may ask as they try to comply with this complicated emergency legislation and to provide sick or leave pay to affected employees.
What is the Act all about?
The Families First Coronavirus Response Act is really a set of acts designed, as the name implies, to address several facets of the ongoing coronavirus COVID-19 pandemic. Two of these acts directly affect employers’ obligations to provide a measure of leave pay under certain circumstances related to the pandemic.
Unfortunately, neither of these statutes has a convenient short name. The first, the Emergency Paid Sick Leave Act (we’ll call it the “EPSLA”, but keep in mind the “SL” for sick leave for ease of reference), provides up to 2 weeks/80 hours of sick pay for many employees who miss work for designated reasons related to the coronavirus. The second, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”, but keep in mind the “FML” part) amends the Family and Medical Leave Act to provide up to 12 weeks of leave, 10 of which are paid at 2/3 pay. As explained below, there are distinct differences and some overlap between the two.
In many respects, it may be easier to analyze issues under the two acts separately, much as employers are accustomed to considering FMLA and Americans With Disabilities Act issues separately for that same condition.
Which employers are covered?
Both statutes apply to employers of fewer than 500 employees. This is unusual, and the product of legislative compromise, as employment statutes more commonly exempt smaller employers than larger ones. Part of this relates to the tax relief provisions that will apply to many payments under the act.
As explained below, the potential exists for an exemption of employers of fewer than 50 employees under the EFMLEA (that providing for 10 weeks of partial paid leave), but that will depend on regulations from the United States Department of Labor that have yet to be drafted.
Thus, employers with 500 or more employees are not covered and do not have obligations under either statute. Smaller employers are covered. The smallest employers, those with fewer than 50 employees, will be subject to the EPSLA sick leave provisions and may or may not be subject to the longer EFMLEA provisions.
A number of states, however, are beginning to adopt their own emergency sick leave statutes, like the State of New York. Many of these statutes do not exempt large employers. So, even those employers with more than 500 employees should be carefully monitoring legislation at the state level.
Which employees are covered?
Unfortunately, the answer is not the same for the EPSLA and EFMLEA. This is due in part to the fact that the EPSLA (sick leave) amends the Fair Labor Standards Act and the EFMLEA (extending FMLA protection) amends the FMLA, and the two amended statutes use definitions that aren’t entirely alike.
As to the EPSLA sick pay provisions, all employees are covered, regardless of how long they have worked (even a day) and whether they are part-time or not. Coverage under the EFMLEA requires 30 days of employment, far shorter than the FMLA it amends, and applies to part-time employees as well. As a practical matter, all but the most recent hires will be covered by both acts if the employer is also covered.
What will trigger entitlement to benefits?
This is an important area where the two acts diverge. The shorter sick leave coverage under the EPSLA applies to a wider range of COVID-19 related absences. The longer durational benefits under the EFMLA apply in a narrower range of instances and may pay lesser benefits. For ease of reference, we’ll treat them separately.
What triggers entitlement to paid sick leave?
As to sick leave under the EPSLA, employers with fewer than 500 employees must provide paid sick leave to employees who are unable to work, or telework, because they:
- Are subject to a federal, state or local quarantine or isolation order.
- Have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- Are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Are caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.
- Are caring for his or her child whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 precautions.
- Are experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
All of these are related to the COVID-19 virus. Among the provisions causing concern for employers, however, are those relating to payments for employees who take time to care for a child whose school or place of care has closed. These concerns stem primarily from students who are old enough, such as 17, not to need parental supervision at home, but the requirement to provide leave exists in the statute nonetheless.
As will be noted below, absences for the first three reasons above (such as being under a quarantine order) are treated somewhat differently from the second three (such as staying at home to care for a child whose school or daycare provider has closed).
What are the sick leave benefits under the EPSLA?
As to the EPSLA, full-time employees are eligible for 80 hours of leave. Part-time employees are eligible for the number of hours they work, on average, over a two-week period.
The rate of pay depends in large part on the reason for the leave. For the first three reasons stated above (such as being under a quarantine order), the employee is entitled to their regular rate of pay, subject to certain caps.
For the remaining reasons (such as caring for a child due to a school closure), the pay is at two-thirds of the employee’s regular rate of pay.
These amounts, however, are subject to fairly generous caps on the amounts paid to employees. Specifically, leave taken for the first three reasons above, such as the employee’s own COVID-19 related condition, is capped at $511 per day. Leave for the remaining reasons, such as leave taken to care for an individual or child, is capped at $200 per day.
What circumstances trigger coverage under the EFMLEA for longer benefits?
As to the longer coverage under the EFMLEA, the circumstances are narrower (and, as will be explained, the level of pay may be less). Coverage under the EFMLEA exists only when the employee is unable to work (or telework) because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19. It isn’t available for the remaining six reasons, such as the employee’s own illness from the coronavirus. Thus, it applies in a much narrower range of instances – only those related to the closing of schools or day care centers.
What are the EFMLEA (expanded FMLA) benefits?
As noted above, these last somewhat longer than the 80 hours of sick pay, but apply in fewer instances and at a potentially lower rate of pay.
The EFMLEA first provides a measure of job protection, much like that already contained in the FMLA that, like the FMLA, lasts for a total of 12 weeks.
Leave under the EFMLEA is unpaid for the first two weeks. Please note, however, that pay might be available during those two weeks under the sick leave provisions of the EPSLA. After the first two weeks, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid.
An employee, if they satisfy both the EPSLA and EFMLEA, will be entitled to benefits under both statutes and thus receive some measure of paid benefits both for the first two weeks (under the EPSLA) and then the remaining ten weeks under the EFMLEA.
How do we afford this?
Congress was well aware of this issue, and it is part of the reason the bill was written the way it was. Subject to certain caps and restrictions, covered employers are eligible to receive refundable tax credits for paid sick and protected leave based on the type of leave and whether the leave is for the employee or the employee’s family member. We will know more details in the coming weeks, but the idea is that at least a portion of the sick leave/expanded FMLA benefits will come back to the employer in the form of tax credits roughly three months down the road.
This is really hard. How can do we approach these issues?
It is hard. Part of this difficulty arises from the fact that the two sets of benefits are so different that they must be analyzed separately. In general, one way is to approach it like this:
- Is the employer covered? Does it have fewer than 500 employees? If so;
- Is the employee covered? This will likely be true of all employees for 80 hours of sick leave under the EPSLA and those of 30 days’ tenure under the EFMLEA.
- For the first two weeks, what has triggered the absence? If it is one of the six items above, the employee will be entitled to sick leave benefits under the EPSLA. To determine the amount, look at the reason why they are seeking benefits (i.e. is the reason among the first three listed above, or the second three?).
- Afterwards (i.e. weeks three through twelve), the question is much more limited, whether they are absent to care for a child home because of the closure of a school or loss of day care due to the virus.
It’s probably easiest to start with the EPSLA sick leave benefits and then, if necessary, look to those under the EFMLEA.
This is still really hard. Can you give me a simple example?
Let’s say employer has between 50 and 500 employees (and therefore is covered by both statutes. An employee has two grade-school aged children and the school has closed (as it has in many states). The employee has worked for over 30 days and is a full-time employee. They will stay home to watch their children as there is no available daycare. What do they get?
For the first 80 work hours (basically two weeks) the employee gets the time off with sick pay under the Emergency Paid Sick Leave Act ("EPSLA"). The pay is at 2/3 the employee’s regular rate, capped at $200 per day and $2,000 in the aggregate. The same would also have been true if they missed the time for reasons such as caring for an individual who has been quarantined.
For the remaining 10 weeks after that they are on 2/3 pay, subject to caps of $200 per day and $10,000 in the aggregate.
In three months, the employer will be entitled to tax credits for the amounts paid.
Is the analysis different if the employee is sick themselves?
It sure does. Let's assume now that the employee himself or herself is actually diagnosed with the coronavirus.
The employee gets the same benefits as described above, except that they receive all of their regular rate (not just two-thirds) subject to higher caps of $511 per day or $5111 per employee in the aggregate for the first 80 hours. The same would be true if the employee was asked by a health care provider to self-quarantine, or if they were having COVID-19 symptoms and are seeking a diagnosis.
They would not, however, have sick pay under the EFMLEA beyond the first 80 hours as the EFMLEA does not apply to the employee’s own illness. Thus, they would have higher benefits for the first 80 hours, but none afterwards.
Can employees get both EPSLA and EFMLEA benefits?
Yes. As noted above, an employee absent to care for a child as a result of a virus-related school or day care closing would get 10 days of EPSLA sick leave benefits during the first two weeks and then 10 weeks of lesser EFMLEA benefits for the following ten weeks, until coverage is exhausted.
We require employees to use sick/accrued PTO etc. for FMLA absences. Can we do so here?
No. The acts provide that the sick pay benefits they offer are in addition to whatever benefits the employer may already have available under its leave policies.
What about part-timers?
They are covered, but receive lesser benefits based on the number of hours they have worked. Please see the questions about the amount of benefits above.
If an employee is unable to work or telework because a child’s school is closed, does that mean the employee is automatically eligible for both kinds of leave?
Not necessarily. Leave under the EFMLEA is only available to employees who have been employed for 30 days before the start of the need for leave. Emergency paid sick leave under the EPSLA is available to employees regardless of the amount of time they have been employed.
Hold on. What if the employer has over 500 employees?
The new acts (EPSLA and EFMLEA) do not apply. The employees get whatever they would have received under the employer's pre-existing leave policies. As no benefits are being paid, there are also no tax credits.
What if the employer has fewer than 50 employees?
For now, at least, those smaller employers should assume the new leave requirements apply to them. The Department of Labor can exempt them entirely from the EFMLEA expansion and from a narrow provision of the EPSLA. Those exemptions are limited to situations where the imposition of the leave requirements “would jeopardize the viability of the business as a going concern.” The DOL, however, has not yet taken any action to exempt any employers, and it’s unclear at this point what limits or requirements the DOL may impose, whether or not it decides to exercise its discretion in this area at all.
What is clear, though, is that for the EPSLA, the only potential DOL exemption is for paid sick leave only where the employee is caring for a child whose school or daycare has been closed, or a childcare provider is unavailable, because of COVID-19 precautions. For all other reasons for leave under the EPSLA, the DOL does not have discretion to exempt employers with fewer than 50 employees, even if the status of the business as a going concern is in jeopardy.
Given the above, aren't I better off being a large (500+) employer? Should I concede that related operations are a single employer to take advantage of that?
Probably not. Status as a single enterprise will ripple across a host of federal and state laws ranging from the FMLA and FLSA through NLRA union issues and ERISA benefit rights, obligations and liabilities, as well as state workers compensation and unemployment compensation rules. It may also affect other non-employment laws. Thus, the benefit of claiming to be a single enterprise to reach the 500-employee threshold is probably outweighed by the risk of being found to be a single enterprise in other contexts. An employer considering taking the position that it and its related entities are a single enterprise to meet the 500-employee threshold should conduct a more in-depth assessment of its operations and the inherent risk.
Will these bills apply to other illnesses or FMLA absences?
No. The expansion is limited to COVID-19 related absences. The ten-day sick leave provisions of the EPSLA apply to the seven types of absences caused by the coronavirus. The longer EFMLEA provisions apply only to school/day care closings occasioned by the virus. Illnesses for other reasons are governed by the employer’s sick leave policies, the FMLA, and state law.
Will the new acts apply to layoffs? What if they’re due to the consequences of the virus?
Both acts are limited to specific absences prompted by medical conditions or school/day care provisions caused by the coronavirus. Neither contains a provision providing benefits in the event of layoffs. Some states have relaxed rules for unemployment compensation benefits to assist workers dislocated by the economic consequences of the virus.
To encourage states to make it easier to collect unemployment compensation benefits, the FFCRA also contains the Emergency Unemployment Insurance Stabilization and Access Act. Under this third Act, the Secretary of Labor is to provide emergency funding to state unemployment trust funds.
Does the Emergency Unemployment Insurance Stabilization and Access Act you just described require an employer to take any affirmative steps related to unemployment?
No immediate employer action is necessary. This provision expands unemployment benefits and provides grants for processing and paying claims to states who meet certain conditions, including taking steps to ease eligibility requirements and access to unemployment compensation for people directly impacted by COVID-19 (e.g., by waiving work search requirement and waiting periods).
If we are laying off more than 50 employees and the Federal WARN Act applies, can we avoid providing 60 days’ notice due to “unforeseeable business circumstances”?
Maybe. Under federal law, there is a strong argument that a sudden loss in business due to closures, quarantines, or a significant decrease in demand resulting from COVID-19 is an “unforeseeable business circumstance” or that COVID-19 is a “natural disaster,” either of which provides an exception to the 60-day notice requirement. But there are three important caveats. First, the longer you wait, the less likely the downturn was “unforeseeable.” The results of COVID-19 are rapidly becoming all too foreseeable. Second, even if there is an exception to the 60-day notice requirement, the other requirements in the WARN Act still apply. Third, the exceptions to the notice period are not the same everywhere.
California’s WARN Act in particular does not have an exception for “unforeseeable business circumstances,” but an executive order dated March 17, 2020, suspends the 60-day notice requirement so long as other aspects of Cal-WARN are followed and the notice contains certain required information. You should consult with California counsel before undertaking mass layoffs or plant closings in that state.
Are we required to provide the newly expanded benefits to employees who are on layoff?
This is an area where the statute is not as clear as employer’s might like. The Act is not specific in regard to employees on layoff, but the wording suggests that it only applies where an employee misses otherwise scheduled work due to a qualifying condition. Under that reading, employees who are not scheduled to work are not entitled to take either of the new types of leave. Nonetheless, we expect that courts and regulators will interpret eligibility quite broadly so that there may be some risk in laying off employees prior the effective date absent compelling business circumstances.
Do these two statutes override other federal and state law requirements?
No. Everything else still applies. Even if the EFMLEA doesn’t apply, the regular FMLA might apply, and your employee who is sick or caring for a sick relative may still be entitled to up to 12 weeks of unpaid FMLA leave. Reasonable accommodation requirements under the Americans with Disabilities Act and state law may apply too, depending on the employee’s condition. The new law provides employees additional leave rights, but the law does not reduce other protections that employees have under existing federal, state, or local laws.
Executive and legislative responses have been swift and varied at all levels of government. You should ensure compliance with state and local law as these requirements evolve.
Do these provisions override collective bargaining agreements?
For the most part, no. Employers must continue to honor the sick leave provisions of labor agreements with their unions.
How about multi-employer collective bargaining agreements?
Employers subject to multi-employer collective bargaining agreements may satisfy the FFCRA’s requirements for paid sick or FMLA leave by making contributions to a multi-employer fund, plan, or program consistent with the labor contract. Employees working under the multi-employer collective bargaining agreement must be able to secure payment from the fund, plan, or program based on the number of hours they have worked.
What tax benefits does the bill offer to offset the cost?
As noted above, subject to certain caps and restrictions, covered employers are eligible to receive refundable tax credits for paid sick and protected leave. These will be based on the type of leave and whether the leave is for the employee or the employee’s family member.
Are these programs permanent?
As of now, no. They are scheduled to expire effective December 31, 2020.
Can we count our non-U.S. employees towards the 500 employee threshold?
Not for the EFMLA and probably not for the EPSLA either. While not specifically addressed in the text of the bill, 29 C.F.R. 805.105(b) states that only employees in the U.S. and its territories are counted for determining FMLA coverage, so this should also apply for determining EFMLEA coverage. As to the EPSLA, the FLSA does not contain a similar provision but it is largely limited to U.S. employees. Thus, determining EPSLA coverage is likely also limited to counting your U.S. employees.
Do these new provisions have a “shelter in place” provision?
Some local governments have instituted shelter in place laws that restrict the type of business that may remain open, but this bill does not contain such a provision. However, shelter in place laws are becoming more common and need to be analyzed individually if your business resides in such a jurisdiction.
What are the notice requirements?
The Department of Labor will be creating notice requirement over the coming weeks.
Can I require documentation such as under the FMLA?
At this time, the statute identifies no specific documentation an employee must provide to request leave. Employers can request reasonable notice in connection with requests for paid time off.