COVID-19 RESOURCES

LITIGATION DEPARTMENT OF THE YEAR - Mid-Size Firm  ALM's Daily Report  

Understanding Sick Leave & FMLA Benefits: FFCRA & CARES Act

SUMMARY OF SICK LEAVE AND FMLA BENEFITS PROVIDED UNDER THE FAMILES FIRST CORONAVIRUS RELIEF ACT, AND THE CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT

The Families First Coronavirus Relief Act (“FFCRA”) was signed into law on March 18, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) was signed into law on May 27, 2020. The FFCRA and CARES require some employers to provide employees with paid sick leave and/or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) published rules on April 6, 20209 regarding administration and enforcement of these paid leave requirements. The requirements are of limited duration, and are currently set to expire on December 31, 2020.

EMERGENCY PAID SICK LEAVE

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. s experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Quarantine or isolation orders for purposes of the first reason listed above include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. However, an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein. If the Page 2 of 7 workplace remains open as an exempted or essential service and the employee has been requested to report for work, the employee has not been prevented from working and is not entitled to benefits under the first of the six qualifying reasons. Additionally, an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. The DOL accordingly indicates that where a business shuts down due to COVID-19 related reasons, the employee is not entitled to sick leave benefits under the first of the six qualifying reasons, even though the employee’s ability to travel to and from work may impacted by quarantine or isolation orders.

Employees who are offered the opportunity to telework are also not eligible for paid sick leave under the first of the six reasons identified above. An employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work.

To qualify for paid sick leave under the second reason for paid sick leave, an employee must be unable to work because he or she has been advised by a health care provider to self-quarantine for a COVID-19 reason. That advice must be based on the health care provider's belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. An employee who is able to telework while self-quarantining is not eligible for paid sick leave.

The third reason for paid sick leave applies where an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. Symptoms that could trigger leave under this provision are: Fever, dry cough, shortness of breath, or other COVID19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC). Additionally, paid sick leave taken for this reason must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Thus, an employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for time spent making, waiting for, or attending an appointment for a test for COVID-19. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis. An employee who is able to telework while waiting for the results of a test is not eligible for paid sick leave, but employees who cannot telework may continue paid sick leave while awaiting test results. An employee may continue to take leave while experiencing any of the symptoms identified above, or may continue to take leave after testing positive for COVID-19, regardless of symptoms experienced, provided that the health care provider advises the employee to self-quarantine. In the case of an employee who exhibits COVID-19 symptoms and seeks medical advice but is told that he or she does not meet Page 3 of 7 the criteria for testing and is advised to self-quarantine, he or she is eligible for leave under the second reason, provided he or she meets all the requirements spelled out above.

The fourth reason for paid sick leave applies where an employee is unable to work because he or she needs to care for an individual who is either: (a) Subject to a Federal, State, or local quarantine or isolation order; or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. This qualifying reason applies only if but for a need to care for an individual, the employee would be able to perform work for his or her employer. Accordingly, an employee caring for an individual may not take paid sick leave if the employer does not have work for him or her. Furthermore, if the employee must have a genuine need to care for the individual. Paid sick leave may only be taken to care for an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.

The fifth reason for paid sick leave applies when the employee is unable to work because the employee needs to care for his or her son or daughter if: (a) The child's school or place of care has closed; or (b) the child care provider is unavailable, due to COVID-19 related reasons. Again, the employee must be able to perform work for his or her employer but for the need to care for his or her son or daughter, which means an employee may not take paid sick leave if the employer does not have work for him or her. Moreover, an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual—such as a coparent, co-guardian, or the usual child care provider—is available to provide the care the employee's child needs.

The sixth reason for paid sick leave is a catch-all that applies if the employee is unable to work because 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.

Benefits Provided:

Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

Calculation of Pay:

For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period). However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section

Paid sick time provided under this Act does not carryover from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.

Covered Employers:

The paid sick leave and expanded family and medical leave provisions of the FFCRA (discussed more fully below) apply to certain public employers, and private employers with fewer than 500 employees. Healthcare providers, defined broadly to include both providers and the businesses that provide supplies and services to healthcare providers, and emergency responders may elect to exempt their employees from FFCRA and CARES sick leave and FMLA requirements. Most employees of the federal government are covered by Title II of the FMLA, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA or CARES. However, federal employees covered by Title II of the FMLA are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide paid sick leave or extended FMLA leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Under the DOL Rule, a small employer is exempt from the requirement to provide such leave when: (1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively. If a small employer decides to leave based on this exemption, the small employer must document the facts and circumstances that meet the above-referenced criteria, and retain such records for its own files in the event of a DOL audit or investigation.

Eligible Employees:

All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees must have been employed for at least 30 days to be eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19 (discussed below).

The benefits afforded under the FFCRA and CARES act are generally in addition to existing employee benefits. Paid leave or extended FMLA coverage cannot be denied because an employee previously exercised his or her rights to sick leave under company policy or a collective bargaining agreement, or to FMLA leave for non-COVID19 related reasons. However, as discussed below, an employer may require an employee to utilize accrued paid time off or sick leave during the first two weeks of a child care related extended FMLA leave if the employee is not eligible for paid sick leave under the FFCRA.

Notice Requirements:

Where leave is foreseeable, an employee should provide notice of leave to the employer as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

Employers are required to post and keep posted a notice of the FFCRA leave requirements in its workplace. Employers may download the poster from https://www.dol.gov/whd. In addition to posting the notice in a conspicuous place where employees or job applicants at a worksite may view it, an employer may distribute the notice to employees by email, or post the required notice electronically on an employee information website to satisfy the FFCRA requirement.

FAMILY MEDICAL LEAVE

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. The employee can receive:

(In addition to the 2 weeks of paid sick leave discussed above), up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay, up to a maximum of $200 per day and $10,000 in total, where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Entitlement to expanded FMLA leave pay does not commence until the employee has been out of work for 2 weeks. The employee may be eligible for six leave pay during those two weeks under category 5 discussed above. Alternatively, the employee can use (at his or her own discretion, or the discretion of the employer) accrued paid time off or sick leave during the initial two week period. Otherwise, the employee is not entitled to compensation during the first two weeks of leave taken to care for a child whose school or place of care is closed.

Under the adopted DOL rule, a qualifying child is a son or daughter, including children under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability.

For employees with varying work hours, the base salary for computation of the twothirds leave pay is based on the average number of hours the employee was scheduled per day over the six-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type. For Page 7 of 7 employees with a varying schedule of hours who have been employed for fewer than six months, employers should base the two-thirds pay amount on the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

PROHIBITED ACTS AND ENFORCEMENT

Employers are prohibited from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid sick leave, or testified or is about to testify in such a proceeding. Employers who violate the paid sick leave requirements will be considered to have failed to pay the minimum wage required by section 6 of the Fair Labor Standards Act (FLSA), and employers who violates the prohibition on discharge, discipline, or discrimination will be considered to have violated section 15(a)(3) of the FLSA, and subject to fines and federal enforcement actions, as well as civil actions by employees. However, where an employer does not have at least 50 or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year, no right to civil action will exist for an employee who is improperly denied extended FMLA.

REIMBURSEMENT OF EMPLOYER’S COSTS

Under the FFCRA, covered private employers generally qualify for dollar for dollar reimbursement through refundable tax credits as administered by the Department of the Treasury, for all qualifying paid sick leave wages and qualifying family and medical leave wages paid to an employee who takes leave under the FFCRA, up to per diem and aggregate caps, and for allocable costs related to the maintenance of health care coverage under any group health plan while the employee is on the leave provided under the FFCRA. Answers to most questions regarding available tax credits can be found at https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

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