Families First Coronavirus Response Act
April 21, 2020 1:00 p.m.
Emergency Paid Sick Leave Act (E-PSL Act)
- Effective Dates: Begins April 1, 2020 and expires December 31, 2020
Notice to Employees
Employers must post the E-PSL Act notice to be provided by the Secretary of Labor.
Applicability
- Applies to all public agencies. A college or university that is a political subdivision is a state is also considered a public agency. It also applies to private employers with fewer than 500 employees
- Applies to all employees of covered employer (full & part-time) regardless of hire date.
- This leave is a benefit in addition to any other benefit that an employee has, and it cannot diminish or serve as a replacement for those other benefits.
- Employers cannot require employees to use other leave before using the E PSL Act Leave.
- Will not lessen a collective bargaining agreement, or greater benefits to employees under a contract or plan.
- The E-PSL Act provides a minimum.
- Employees have protection against retaliation.
- Employer may require reasonable notice and reporting procedures of the employees, but this is a case-by-case applicability.
- The E-PSL does not carry over to the next year and employees forfeit any unused time under the E-PSL.
Qualifying Reasons
To take leave under the E-PSL Act, the employee must be unable to work or telework due to the following reasons only:
- The employee is subject to a
government-mandated quarantine. - The employee is directed by a health care
provider to self-quarantine. - The employee is experiencing COVID-19
symptoms and seeking a medical diagnosis. - An employee is taking care of an individual (not limited to a family members) who is covered under items 1 and 2 listed above.
- The employee is caring for a son or daughter if the school or place of education of the son or daughter is closed, or the childcare provider of such child is unavailable due to COVID-19 precautions.
- The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. (Regulations will clarify this point.)
Pay Requirements
- Full-time employees can get up to 80 hours of sick pay at their regular rate of pay, if the reasons are items 1-3 listed above. If the reason is items 4-6, employees receive 2/3 of their regular rate of pay.
- Part-time employees are paid similarly, but are paid for the number of hours they are normally scheduled to work in a two-week period.
If the reason for leave is items 1-3 listed above, an employee will be paid their normally hourly rate, up to $511 a day or a maximum of $5,110 in the aggregate.
If the reason for leave is items 4-6 listed above, the max of 2/3 rate of pay is $200 a day, or a maximum of $2,000 in the aggregate.
Potential Exceptions
- The Secretary of Labor is authorized to issue regulations excluding employers with fewer than 50 employees of compliance with the E-PSL Act.
- To be exempt is a high standard. An authorized officer of the business has determined that:
- Would result in expenses and obligations exceeding available business revenue and cause the business to cease operating at a minimal capacity.
- The absence of the employee(s) would cause substantial risk to financial health or operations because of the employee(s).
- The absence(s) would create a situation of insufficient and qualified workers to operate the business at minimal capacity.
The Small Business to elect this exception must maintain records to justify this decision.
Keep records for four (4) years.
Employer still required to post the New Notice on E-PSL.
Enforcement
- Penalties mirror the Fair Labor Standards Act (FLSA). Not complying with the E-PSL Act will be treated as not paying minimum wage.
Employees may be entitled to double lost wages and attorney fees and costs. If a willful act, employers can also face fines up to $10,000 and criminal provisions will apply if a prior violation exists. Reinstatement is also an available remedy.
Emergency Family and Medical Leave Expansion Act (E-FMLA)
Effective Dates: Begins April 1, 2020 and expires December 31, 2020
Notice to Employees
Employers must post the E-FMLA Act notice to be provided by the Secretary of Labor.
Applicability
Applies to all public agencies, including a college or university that is a political subdivision of a state. It also applies to private employers with fewer than 500 employees. (The E-FMLA did not carry over the provision for employers to exclude employees
from the count whose work sites are more than 75
miles away. It appears that the E-FMLA will apply
to employers with fewer than 500 employees
regardless of site location. In other words, you may
exclude if you have more than 500 employees
regardless of location, even long distances.
Applicability
- Employers of health care providers and emergency responders are excludable under the E-FMLA provisions
- Employers with fewer than 50 employees still have to provide E-FMLA leave but are not subject to civil liability for failing to do so. (Can still be subject to EEOC enforcement.)
- Applies to all employees of covered employees (full
& part-time) who have been employed at least 30
days.
Applicability
- Employees have protection against retaliation.
- Employer may require reasonable notice and reporting procedures of the employees, but this a case-by-case applicability.
- May be used intermittently.
Qualifying Reasons
To take leave under the E-FMLA Act, the employee must be unable to work or telework due to the following reasons only:
“A qualifying need related to a public health emergency.”
- Under the E-FMLA, this is met if the employee is unable to work (or telework) due to a need for leave to care for a child under 18 years of age who was affected by school or child care closures or whose child care provider is unavailable due to to a public health emergency. A child care provider is one who receives compensation for providing services.
Pay Requirements
- Employers must provide employees with unpaid leave for the first 10 days. The first 10 days can be covered by E-PSL Act. Employees can also elect to use paid leave (vacation, personal, medical, sick, etc.) concurrently with E-FMLA.
- After 10 days, the employee receives at least two-thirds (2/3) of their regular rate of pay for the number of hours the employee would normally be scheduled over the time period.
Employee receives a maximum of $200 a day, and $10,000 in the aggregate over the remaining 10 weeks.
For part-time employees, an employer should look at their average hours worked over the last 6 months. If the part-time employee has worked less than 6 months prior to leave, an employer should look at the reasonable expectation of hours the employee would normally be scheduled to work.
The 12 week is reduced by any FMLA the employee has already used in the preceding 12 months.
Potential Exceptions
- The Secretary of Labor is authorized to issue regulations excluding employers with fewer than 50 employees if compliance with the E-FMLA Act would jeopardize the viability of the company.
To be exempt is a high standard. An authorized officer of the business has determined that:
Would result in expenses and obligations exceeding available business revenue and cause the business to cease operating at a minimal capacity.
The absence of the employee(s) would cause substantial risk to financial health or operations because of the employee(s).
The absence(s) would create a situation of insufficient and qualified workers to operate the business at minimal capacity.
Enforcement
- Except for health care providers, emergency responders, and employers with 50 or fewer employees, penalties mirror the FMLA Act (FMLA).
- Employers must restore employees who take E-FMLA to an equivalent
position upon their return to work. Employers with less than 25 employees
must take reasonable efforts to restore the employee to a equivalent position
with equivalent pay and benefits unless the position was eliminated by:- Economic conditions; and
- Other changes in operating affecting employment and caused by the coronavirus emergency.
- If an equivalent position is not available, the employer must make reasonable efforts for one year (after the employees leave starts or after the COVID-19 health emergency concludes) to contact the employee regarding any equivalent positions that become available.
Tax Credits
- Please consult your tax professional, but generally, the Family First Coronavirus Response act (H.R. 6201) provides a tax credit to employers for wages paid for sick leave and FMLA.
- The credit is applied to the employer’s portion of the 6.2% of the social security tax and is refundable if it exceeds the amount the employer pays in such payroll tax. Similar credits exist for self-employed individuals.