On Saturday, March 14 the U.S. House of Representatives passed H.R. 6201, the Families First Coronavirus Response Act (“FFCRA”), by a bipartisan vote of 363-40. The bill now proceeds to the Senate, which is currently on recess but will return this week. The bill could be voted on as early as today. President Trump has signaled his approval for the bill, so it is likely to pass Congress in some form or fashion. The bill will take effect fifteen days after enactment. It will remain in effect until it expires under a sunset provision on December 31, 2020.
The FFCRA provides for expanded FMLA leave and protections, as well as paid leave to run concurrently with the expanded FMLA leave. Here are several key provisions that will have a significant impact on employers with fewer than 500 employees doing business in the United States.
FMLA Leave for Public Health Emergencies
The FFCRA amends the Family & Medical Leave Act (FMLA) to include Public Health Emergency leave for certain COVID-19 related absences as among the qualifying reasons for using FMLA time off. The FFCRA amends the FMLA as follows:
- The term “eligible employee” is expanded to include anyone who has been employed for at least 30 days when requesting COVID-19 related leave;
- Modifies the employer threshold for COVID-19 related leave from “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding year” to “fewer than 500 employees”; and
- Expands the definition of a parent to include foster and adoptive parents, step-parents, parents of a domestic partner, parental in-laws, guardians, and those who stand in loco parentis for COVID-19 related leave.
The FFCRA provides job-protected FMLA leave for which the first 14 days may be unpaid. Leave may be used for any of the following purposes:
- To comply with a recommendation or order by a health authority or agency that the employee avoid the workplace because (i) the employee’s presence would expose others in the workplace to coronavirus or (ii) the employee is exhibiting symptoms of coronavirus and would be unable to perform the functions of the position and comply with such recommendation or order.
- To care for a family member (parent, spouse, sibling, next of kin, son, daughter, grandparent, or grandchild) who jeopardizes the health and safety of others in the community because of the family member’s exposure to the coronavirus or the family member’s exhibition of symptoms; or
- To care for a child under 18 years of age if the school or place of care for the child has closed, or the child care provider for the child is unavailable because of a public health emergency.
This last qualifying circumstance related to school and childcare closures has potential to have the greatest impact on employers covered by this legislation.
Employers with at least 25 employees must restore an employee who takes COVID-19-related FMLA to an equivalent position unless the position held by the employee does not exist because of changes in economic conditions or operations related to COVID-19.
If the employee cannot be restored to employment upon returning from leave, but an equivalent position becomes available within 1 year, the employer must contact and rehire the employee. A year is measured from the earlier of (i) the date on which the qualifying need related to a public health emergency concludes or (ii) the date that is 12 weeks after the date on which the employee’s leave commences.
Federal Paid Sick Leave
The FFCRA also requires employers with fewer than 500 employees to provide full-time employees with 2 weeks (80 hours) of paid sick leave and part-time employees with leave equal to the employee’s average number of hours over a 2-week period for certain COVID-19 related leave. Specifically, this paid sick leave may be used to:
- Self-isolate because the employee is diagnosed with coronavirus;
- Obtain a medical diagnosis or care if experiencing the symptoms of coronavirus;
- Comply with a recommendation or order of a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of (i) the exposure of the employee to coronavirus; or (ii) exhibition of symptoms of coronavirus by the employee;
- Care for or assist a family member who, because of coronavirus, is self-isolating, experiencing symptoms and needs to obtain medical diagnosis or care, or has been determined by a public official or health care provider to jeopardize the safety of healthy individuals because of the family member’s exposure to coronavirus or exhibition of symptoms; or
- Care for a child if the school or place of care has been closed, or the child care provider is unavailable, due to coronavirus.
Again, this fifth circumstance has potential for the greatest impact to covered employers based on the current circumstances of widespread school and day care closures. Paid leave taken to care for a family member or to care for a child whose school or day care is closed is paid at two-thirds the employee’s regular rate.
Employers with Existing Policies; State and Local PTO Requirements
With respect to employers that already provide paid leave, the paid sick time offered in the FFCRA must be in addition to any paid leave already provided. Paid sick time offered under the FFCRA must be available for immediate use by the employee for the purposes described above. The paid time off required by the FFCRA is also separate from and in addition to any PTO required by State or Local laws
Paid Sick Leave Notice Requirements
Each employer must post on its premises and in conspicuous places where employee notices are customarily posted, a model notice of rights under the FFCRA. This model notice will be available from the Secretary of Labor no later than 7 days after the enactment of the FFCRA.
The FFCRA forbids employers from discharging, disciplining, or otherwise discriminating against any employee who exercises or attempts to access their rights under the FFCRA.
Employers who violate employee rights will be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and subject to penalties outlined in sections 16 and 17 of the FLSA (29 U.S.C. 216 and 217).