Late last night, the President signed the Families First Coronavirus Response Act (H.R. 6201) (the “FFCRA”) to assist families and workers during the COVID-19 crisis. In addition to benefits relating to COVID-19 testing, food assistance, unemployment assistance expansion, and protection of public health workers, the FFCRA provides for additional paid leave for employees. The following briefly summarizes the new paid leave provisions, which go into effect on April 2, 2020 through December 31, 2020.

Emergency Paid Sick Leave Act

Private employers with 500 or fewer employees must provide full-time employees 80 hours of paid sick leave if they are:

  1. unable to work because they are subject to a government quarantine or isolation order or have been told by a health care provider that they should self-quarantine due to COVID-19 (paid at 100% rate of pay up to a maximum of $511/day and $5,110 in the aggregate);
  2. experiencing symptoms of COVID-19 and seeking diagnosis (paid at 100% rate of pay up to a maximum of $511/day and $5,110 in the aggregate);
  3. caring for someone who is subject to isolation or a quarantine order or has been told by a health care provider that he/she should self-quarantine (paid at 2/3 of their normal rate up to a maximum of $200/day and $2,000 in the aggregate);
  4. caring for the employee’s son or daughter whose school or childcare provider is closed or not available due to COVID-19 (paid at 2/3 of their normal rate up to a maximum of $200/day and $2,000 in the aggregate);
  5. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (paid at 2/3 the employee’s rate and capped at $200 per day and $2,000 in the aggregate).

Part-time employees are entitled to paid sick leave for the average number of hours they work in a two-week period.

Paid sick leave does not carry over from one year to the next.

Employers are prohibited from discharging, disciplining, or otherwise discriminating against an employee for taking leave provided by the Act.

Emergency Family and Medical Leave Expansion Act

The Family and Medical Leave Act of 1993 (FMLA) is amended to require employers with 500 or fewer employees to provide employees who have been employed at least 30 days with paid leave if they are unable to work because they need to care for a child under 18 if the school or child care provider is closed or unavailable due to the COVID-19 public health emergency. The first 10 days of the leave are unpaid (but the employee will be getting the paid sick leave discussed above during this period). Employees may elect to use vacation, PTO, sick leave, etc. Employers must provide paid leave (at least 2/3 regular rate of pay, not to exceed $200/day and $10,000 in the aggregate) for up to 10 weeks after the initial 10-day unpaid leave.

The FMLA’s requirement to restore an employee to the same or equivalent position does not apply to an employer with fewer than 25 employees IF the employee takes leave under the Emergency Family and Medical Leave Expansion Act and: (1) the position held when the leave commenced no longer exists because of economic conditions caused by a public health emergency during the leave; (2) the employer made reasonable efforts to restore the employee to an equivalent position, and (3) the employer makes reasonable efforts to contact the employee if an equivalent position becomes available within one year after the date that the public health emergency ends or the date that is 12 weeks after the commencement of the leave, whichever is earlier.

Importantly, the Secretary of Labor has authority to exempt small businesses with fewer than 50 employees from these FMLA provisions if compliance would jeopardize the employer’s viability.

Tax Credits

Covered employers will receive tax credits on a quarterly basis for the total amount of qualified sick leave wages paid and qualified family leave wages paid in that quarter. The benefits paid will be applied as a credit against the employer portion of the social security taxes (at 6.2%) that otherwise would be due from the employer for that quarter. If the employer paid employees more in leave benefits than it owed in social security taxes during the quarter, any excess amounts paid will be refunded to the employer as a credit as if the employer overpaid its portion of the social security taxes.

You can review the entire FFCRA here (add link). Please do not hesitate to contact us with any questions.

Keesal, Young & Logan Employment Group
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.