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By: Kevin Richter

In response to this time of uncertainty and health care concerns, Congress passed a new law called the “Families First Coronavirus Response Act” (“Act”) and signed by the President.  We thought it would be helpful if we provided a summary of the Act on our website. Please be advised this is only a summary and any application to your particular situation should be independently reviewed with an attorney.   The following is the summary:

Emergency Paid Sick Leave

The first topic that will be covered is Emergency Paid Sick Leave under the new act. An employer would need to provide paid sick time to the extent employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to an governmental quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual that is subject to an order requiring quarantine or has been advised to self-quarantine by a health care professional;
  5. The employee is caring for a son or daughter if the school or day care has been closed to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar conditions specified by the appropriate governmental authorities.

Length of Paid Sick Leave

The employee shall be entitled to paid sick time for the amount of hours as follows:

  1. Full time employees receive eighty (80) hours;
  2. Part time employees receive a number of hours equal to the number of hours that each employee works on average over a two week period.

The paid sick time terminates beginning with the employees next scheduled work shift immediately following the termination of the need for paid sick time as described in items (1) through (6). The sick time shall be available for immediate use by employees regardless of how long the employee has been employed by the employer and the employer may not require an employee to use other paid leave provided by the employer before the employee may use the paid sick leave under this Act.

Amount of Paid Sick Leave

Payments for leave due to reasons (1),(2) or (3) are required to be made at either the regular rate of pay or minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate.  For reasons (4) and (6) leave shall be paid at 2/3 their regular rate of pay or 2/3 of minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate.

Notice

The employer needs to post a notice explaining rules under this new Act. The notice should be placed at the location where the employer posts other required notices from the Department of Labor. Below is the link to the notice.  https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Prohibited Acts

The employer may not take adversary discipline action against the employee for utilizing their rights under this act.

Expansion of Family Medical Leave Act

Another sub-section enacted under this new Act is cited as the Emergency Family and Medical Leave Expansion Act.

This new provision covers employers with less than five hundred (500) employees. In this instance as opposed to the Emergency Paid Leave Act, there are certain eligible employees. The employee must have been employed for thirty (30) calendar days by the employer before the requested leave comes into effect. Furthermore if you have less than 50 employees you may be exempt from the payments of wages if the imposition of the payments would jeopardize the viability of the company as a going concern.

Application

This extended leave applies to those employees who are unable to work (or telework) due to the need to care for their son or daughter who is under eighteen (18) years of age if the school or place of care has been closed or the childcare provider of such son or daughter is unavailable due to a public health emergency. Both Federal and State authorities have declared a public health emergency.

Leave

This leave begins ten (10) days after the paid sick leave available under the Emergency Paid Leave or the employee may elect other available PTO or other leave.

Amount

The amount that the employer is responsible for is two thirds (2/3) of an employee’s regular rate of pay as determined under the Fair Labor Standards Act or 2/3 of the applicable minimum wage, whichever is higher, and the number of hours the employee would otherwise normally be scheduled to work calculated under the rules provided under the act. However in no event shall such paid leave exceed two hundred dollars ($200.00) per day and ten thousand dollars ($10,000.00) in the aggregate. For part time employees there are special rules that would apply if it is difficult to determine the average number of hours for a part time employee.  Generally the employer would use the average number of hours the part time employee would be scheduled per day over the six (6) month period ending on the date the employee takes leave excluding hours for which the employee took leave of any type. If they were not employed for six (6) months then it is just the average over the period with reasonable expectations applied.  The Act goes into more detail if this is an issue.

Restoration

There are similar provisions under the normal Family Medical Leave Act section 104(a)(1), related to restoration to the position once the employee is ready to come back however this would not apply to an employer who employs fewer than twenty five (25) employees if a number of conditions are satisfied. If the exception for less than 25 employees is to be applied the section should be reviewed to verify that the employer meets the conditions.

Tax Credits

There is available a dollar for dollar reimbursement through tax credits for all qualifying wages paid under the Act. Qualifying wages include those wages paid under the Act to employees taking leave for a qualifying reason, up to the appropriate per diem and the aggregate payment caps. The tax credit is also available for amounts paid or incurred to maintain health insurance coverage. Additional information on how to apply the credit will be available from your accountant.

Penalties

Penalties for violations of the Emergency Paid Sick Leave provisions will be subject to enforcement under the Fair Labor Standards Act.  Violations of the Expanded Family and Medical Leave Act will be subject to enforcement provisions under the Family and Medical Leave Act.  There is a 30 day non-enforcement period after the Act takes effect so long as the employer has acted reasonably and in good faith.  “Good Faith” means when that the violations are corrected and the employees are made whole, the violations are not willful and the Department receives a written commitment from the employer to comply with the Act in the future.

The above is not legal advice but for questions call one of our attorneys and they will assist you at 618-234-9800.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.