As part of sweeping legislation, the Families First Coronavirus Response Act (FFCRA) became effective April 1, 2020. As of right now, its requirements are in effect only until the end of the calendar year. The two laws were enacted to provide workers with paid leave for reasons related to the coronavirus (COVID-19) pandemic. These laws are:
- The “Emergency Family and Medical Leave Expansion Act” allows 12 weeks of partially compensated FMLA leave to care for a child whose school or child care facility has been closed due to COVID-19.
- The “Emergency Paid Sick Leave Act” requires employers to provide 80 hours of paid sick time to employees in specified circumstances related to COVID-19 exposure and prevention.
The legislation requires covered employers to post a notice of the FFCRA requirements in a conspicuous place on its premises. The U.S. Department of Labor (DOL) has provided separate versions of this notice for federal and nonfederal employees. The DOL issued the following frequently asked questions (FAQs) regarding this notice requirement. We caution employers that when the DOL provides new updates that existing responses to FAQs may also be updated without specific notice of any change.
Two of our current SHRM STL Board members have unique perspectives on legislative changes and the impacts on employers. Mel Jones is a Client Advocate and Producer at Lockton and Tim Well is the Managing Director of Employee Benefits at the Crane Agency. Both work in companies associated with insurance and employee benefits programs as employer advocates. They are sharing their perspectives on how employers of all sizes can stay on top of this changing landscape.
They also wanted to remind those small businesses out there with fewer than 50 employees that you may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern if certain criteria are met.
The DOL has issued temporary regulations under FFCRA. The FFCRA created requirements for certain employers to provide paid sick leave and partially compensated, expanded Family and Medical Leave Act (FMLA) leave for specific, detailed reasons related to the COVID-19 pandemic. The regulations also include important clarifications to the law and earlier DOL guidance on the FFCRA to help employers understand their obligations under these new paid leave mandates.
The regulations expand on features of the law such as:
- the small business exemption;
- the implications of teleworking;
- the applicability of the law to health care providers and emergency responders;
- employee leave rights when caring for someone else; and
- the effect of existing paid leave policies and FMLA leave on the new leave mandates.
The regulations also include definitions that were not in the FFCRA statute itself, such as the definition of “subject to a quarantine or isolation order,” “telework” and an “individual who needs care.” They also provide detail on when an employee may take intermittent leave and documentation required of employees and employers under the FFCRA.
The expanded FMLA requirements under the FFCRA apply to private employers with fewer than 500 employees, and some government employers. In general, nonfederal public agencies are covered by the expanded FMLA leave requirements, but most federal government agencies are not.
For those employees who are already entitled to FMLA, they may take leave to care for a minor child whose school or child care provider is closed or unavailable, but all leave taken under FMLA is counted toward the maximum 12-week period. It's important to note “stacking” of FMLA time is not intended under the Act.
Unlike the expanded FMLA requirements, the FFCRA paid sick leave requirements apply to all private employers with fewer than 500 employees, and all government employers. Part-time employees are entitled to a prorated period of pay. For paid sick leave, employers may not require an employee to use existing, available leave concurrently with paid sick leave.
To determine whether an employer has fewer than 500 employees, according to the regulations, employers should count all full-time and part-time employees in the United States (including any U.S. territory or possession) at the time an employee would take leave, including:
- current employees,
- employees on leave of any kind,
- employees of temporary placement agencies who are jointly employed under the FLSA,
- day laborers supplied by a temporary placement agency, and
- common employees of joint or integrated employers.
The Fair Labor Standards Act test for joint employers applies, as does the FMLA test for integrated employers. Employers should not count independent contractors, or employees who were laid off or furloughed and not rehired.
Congress has not taken action mandating paid sick leave for employers with 500 or more employees. We may see additional legislation focused on larger employers. These employers may want to assess existing sick pay and leave policies to identify gaps and plan for ways to address the immediate need. This plan should also consider what sick pay and leave program will work best beyond 2020.