By the The HR Team, East Coast Risk Management
The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020 and expires December 31, 2020. However, employers were challenged with interpreting the law largely on their own until April 2, 2020, when the DOL published its temporary rule implementing new administrative regulations .
Below is a summary of what you will need to know before implementing the Act.
There are 6 reasons that an employee may be entitled to sick leave under this law:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
There are various shelter-in-place or stay-at-home orders issued by the governors of the several states; however, the order alone is not reason enough to qualify for leave.
- The affected employee’s employer must still have work available for the employee to go back to, once the quarantine is over.
- If the stay-at-home or other order also shuts down the employee’s employer as a “non-essential” or “non-life-sustaining” business, then the employee would not qualify for leave under this criterion.
- The order must actually prevent the employee from working. If the employee is able to perform the employee’s former job functions through “teleworking,” then the employee is not actually “unable to work.”
If the employee is eligible for #1, then the employee must be paid for up to 2 weeks sick pay at their regular rate of pay and is capped at $511/day and $5,110 for the total 2 weeks’ pay. A full-time employee (defined as one working an average of 40 hours per week) is entitled to 80 hours of EPSL, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period.”
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
It is not enough that the employee has simply been advised by a health care provider to self-quarantine; it must also be true that following that advice actually prevents the employee from being able to work or telework.
- The term “concerns related to COVID-19” refers specifically to a belief that:
- The employee has COVID-19;
- The employee may have COVID-19; or
- The employee is particularly vulnerable to COVID-19;
If the employee is eligible for #2, then the employee must be paid for up to 2 weeks sick pay at their regular rate of pay and is capped at $511/day and $5,110 for the total 2 weeks’ pay. A full-time employee (defined as one working an average of 40 hours per week) is entitled to 80 hours of EPSL, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period.”
(3) The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis from a health care provider.
- “Symptoms” here refer to “fever, dry cough, shortness of breath,” or other symptoms identified by the U.S. Centers for Disease Control and Prevention (“CDC”).
- The amount of paid sick leave taken under this criterion is limited to time the employee is unable to work while “taking affirmative steps to obtain a medical diagnosis,” which the DOL interprets to include only the “time spent making, waiting for, or attending an appointment for a test for COVID-19.”
- Additionally, as with criteria (1) and (2), it is not enough that the employee happens to be in line for a COVID-19 test; it must also be true that the employee is actually prevented from being able to work or telework.
If the employee is eligible for #3, then the employee must be paid for up to 2 weeks sick pay at their regular rate of pay and is capped at $511/day and $5,110 for the total 2 weeks’ pay. A full-time employee (defined as one working an average of 40 hours per week) is entitled to 80 hours of EPSL, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period.”
(4) The employee is caring for an individual who is subject to a government quarantine or isolation order related to COVID-19, or who has been directed by a health care provider to self-quarantine due to concerns related to COVID-19.
- Here, the individual in question is actually dependent on the employee who is requesting leave for care, and the employee’s employer must actually have work available for that employee which the employee cannot perform because of having to offer that care.
- Further, the employee must actually have a “personal relationship” with the individual cared for, who must, in turn, be a(n):
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- “Immediate family member” or
- “Roommate” or
- “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.”
If the employee is eligible for #4, then the employee must be paid for up to 2 weeks sick pay at two-thirds of the employee’s regular rate and is capped at $200/day and $2,000 total.
(5) The employee is caring for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 related reasons;
- The son or daughter is actually dependent on the employee who is requesting leave for care, and the employee’s employer must actually have work available for that employee, which the employee cannot perform because of having to offer that care
- Consequently, if there is “another suitable individual” (such as a spouse, co-guardian, or a childcare provider) “is available to provide the care the employee’s child needs”, leave is not available under this criterion.
- The definition of “childcare provider” here is intended to refer to a licensed provider of childcare services, but also a family member, friend, or neighbor, who “regularly cares for the employee’s child.”
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Just as identified with the FMLA, the term “son or daughter” includes only a(n):
- “biological child”, Or
- “adopted child”, Or
- “foster child”, Or
- “stepchild”, Or
- “legal ward”, Or
- “child of a person standing in loco parentis” Or
- “who is under 18 years of age,” Or
- “18 years of age or older who is incapable of self-care because of a mental or physical disability.”
If the employee is eligible for #5, then the employee must be paid for up to 2 weeks sick pay at two-thirds of the employee’s regular rate and is capped at $200/day and $2,000 total.
(6) 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. The substantially similar condition may be defined at any point during the Effective Period, April 1, 2020, to December 31, 2020.
- This is a “just-in-case” or “catchall” provision. There is not much guidance provided regarding this criterion, but it would seem to anticipate the emergence of a different epidemic that a “substantially similar”, but not identical, to COVID-19, either through mutation or coincidence.
There is one reason that an employee may be entitled to Emergency FMLA Expansion Leave under this law.
The employee must be caring for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 related reasons. However, while the sick leave portion of the law is available to any employee, The Emergency Family Medical Leave is available only to employees who have worked for the employer for at least 30 days prior to the day the employee’s leave would begin.
The regulations further clarify: “[A]n employee who is laid off or otherwise terminated by an employer on or after March 1, 2020, is nevertheless also considered to have been employed for at least thirty calendar days, provided the employer rehires or otherwise reemploys the employee on or before December 31, 2020, and the employee had been on the employer’s payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off or otherwise terminated.”
- No pay for first 10 days of leave (can use other PTO or Emergency Paid Sick Leave time for those first 2 weeks)).
- After 10 days, employers must pay two-thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work; capped at $200/day and $10,000 total.
- Same reinstatement provisions apply as under traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if the following conditions are met:
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- The job no longer exists because of economic downturn or other operating conditions caused by a public health emergency.
- Employer makes reasonable efforts to return the employee to an equivalent position.
- Employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.
After 10 days, employers must pay two-thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work; capped at $200/day and $10,000 total.
If you are an employer that has questions on any issue relating to human resources, safety, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com.
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