The Families First Coronavirus Response Act (FFCRA) is slated to take effect April 1, 2020. We know that it leaves affected employers with many questions regarding their responsibilities to provide paid family and sick leave to employees impacted by COVID-19.
Our team at Anglin Reichmann Armstrong has summarized some of the frequently asked questions about employee rights and employer obligations. Note that this Q&A represents language from H.R. 6201, and legal interpretation is still ongoing. Before taking any direct action, you should discuss your options with your legal team. New emergency relief legislation may also alter guidance under FFCRA.
1) When does a company have to provide Emergency Sick Pay for the employees?
Response: Per H.R.6201, all employers must provide Emergency Sick Pay for all employees, both full and part-time, in the amount of 80 hours for full-time employees and the equal to the average hours works for part-time employees. This is above any PTO/sick time the employee would earn under an already existing plan with the employer. This is due to the employee immediately to all employees regardless of length of the employment with the employer. This sick time is to cover employees who are required to be quarantined due to one of the following reasons and is unable to telework from home.
- The employee is subject to a 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.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- 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.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
This ruling is in effect for all employers who have less than 500 employees. Note that employers with less than 50 employees may be exempt from this rule if providing the benefit might cause a going concern for the business. Please discuss with your legal team any issues you might foresee.
Source: H.R.6201 Section 5102
2) How much is the company required to pay for the sick leave?
Response: The employee is paid at their normal rate of pay for the required hours (full-time = 80 hours; part-time = average hours worked) not to exceed a maximum of $511/day should they be unable to work due to reasons 1-3 listed above. If they are unable to work for reasons 4-6 listed above, they are entitled to 2/3 of the normal rate, up to a maximum of $200/day. Any payment above this maximum is at the employers’ decision, but will not be credited back to the employer as Emergency Sick Pay.
Source: H.R.6201 Section 5110(5)
3) How do I calculate a part-time employee’s average hours?
Response: For a part-time employee whose schedule varies, calculate the number of hours owed by averaging the daily hours over the last 6-month period. If that employee didn’t work the last 6-months, then use a reasonable expectation of the employee at the time of hiring.
4) If the employee has the ability to work partial days, how must they be paid?
Response: For the hours of work, the employee is to be paid their normal hourly (or hourly equivalent) wage. Any hours less than the normal hours worked or required to work that are due to the reasons covered in this Act are to be paid as Emergency Sick/Family Leave in accordance with the 80 hours of required leave for each full-time employee and average work time for each part-time employee.
As an example, a full-time, 80-hour employee, works 60 hours in a given pay period, but is unable due to a reason listed in FAQ#1 to work the remaining 20 hours in that pay period, must be paid those hours (up to a total of 80 hours covered under this Act) up to $511/day for reasons 1-3 and $200/day for reasons 4-6.
5) How does the company receive reimbursement and how much will that reimbursement be?
Response: The employer will be reimbursed 100% paid by the employer within the quarter not to exceed the amounts listed in FAQ#2. Any amounts paid out in excess of the liability owed in that quarter will be considered an overpayment and can be refunded to the employer or carried forward as a payroll tax credit
Source: H.R.6201 Section 7001
6) What happens after the mandatory two-week’s pay?
Response: Two options listed below. The first option talks about covered employees under the new FMLA provisions. The second discusses non-covered employees’ options.
1) The first option is all employees, employed for at least 30 days, who are unable to work (or telework) while caring for their children (son or daughter under the age of 18) due to schools or daycare closures are now covered under the new FMLA provisions. That coverage offers 12 weeks of leave for these employees. The first two weeks are unpaid, but the employee can elect to use any accrued sick/vacation time to cover this time period.
After the unpaid two-week period, the employee must then receive 2/3 of their normal pay capped at $200/day for the next 10 weeks.
Other provisions make it mandatory that the employer makes reasonable effort to restore employee to equivalent position upon return with equivalent benefits, pay and other terms and condition of employment. If reasonable efforts of the employer fail, the employer makes reasonable effort to contact the employee when an equivalent position becomes available. The contact period is 1-year beginning on the earlier of the date
(a) the date on which the qualifying need related to public health emergency concludes; or
(b) the date that is 12 weeks after the date on which the employee’s leave under commences.
2) After the mandatory Emergency Sick Leave, the employee, if still unable to work due to one of the reasons listed in FAQ#1, and the employee is not considered covered under option 1’s new FMLA provisions, the employee may file for unemployment through the state. The State requires employers to provide notification of the availability of unemployment compensation to the employees at the time of separation.
The Federal government will provide the states with funding if they meet certain guidelines:
a) The State requires employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment. Such notification may be based on model notification language issued by the Secretary of Labor.
b) The State ensures that applications for unemployment compensation, and assistance with the application process, are accessible in at least two of the following: in-person, by phone, or online.
c) The State notifies applicants when an application is received and is being processed, and in any case in which an application is unable to be processed, provides information about steps the applicant can take to ensure the successful processing of the application.
Many states are allowing for partial unemployment claims to be filed. Employers would need to file these claims with their employee’s Department of Labor offices. When filing, employers must make the selection that the claim is based on Covid-19. Any charges of these claims, for the state of Alabama, will be waived until further notice per the Alabama Department of Labor site. Please review state specific guidance for each state you operate in.
7) What if I need to lay off my employees?
Response: Employers who are unable to provide work options to their employees at this time can choose to lay off their employees due to lack of work. These employees will be able to apply for unemployment benefits in their states. Note that many states have hotlines in places to discuss businesses concerns in regards to layoffs and can discuss further guidance with you. We would also suggest you discuss this issue with your legal team.
While a layoff is allowed, what is not allowed is any discharge, discipline, or in any other manner discriminate against any employee who—
(1) takes leave in accordance with this Act; and
(2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.
8) What about healthcare providers?
Response: An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments.
Source: H.R.6201 Section 3105
9) What notices do I need to post?
Response: Per H.R.6201 Section 5103,
(a) The employer needs to post, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in this Act.
(b) Model notice – Not later than 7 days after the date of enactment of this Act, the Secretary of Labor shall make publicly available a model of a notice that meets the requirements of subsection (a).