The Families First Coronavirus Response Act (FFCRA) has gone into effect as of April 1, 2020, and will remain in effect until December 31, 2020. The Act requires all public employers, as well as private employers with fewer than 500 employees, to provide paid sick leave and expanded family and medical leave to employees who cannot work because of COVID-19 related reasons. The specified COVID-19 related reasons and the benefits that employers must provide for each are as follows:
Family Leave: If an employee cannot work because their child’s school or child-care provider is closed due to COVID-19, then the employer must pay up to 12 weeks of paid leave at two-thirds the rate of their normal pay. The paid leave caps at a maximum of $200 a day and $10,000 in total. However, the FFCRA specifies that the employer is not required to pay for the first 10 days of such leave. Furthermore, the employee must have been employed for a minimum of 30 days to be eligible for such leave.
Paid Sick Leave: Full-time employees are entitled to 80 hours of paid sick time, and part-time employees are entitled to paid sick time in the amount of hours they typically work in a two-week period, if the employee is unable to work because he or she:
- is subject to a governmental quarantine or isolation order,
- has been advised by a health-care provider to self-quarantine,
- has COVID-19 like symptoms and is seeking medical diagnosis,
- is caring for an individual who is subject to governmental or self-quarantine,
- is caring for the employee’s child because the child’s school or child-care provider is closed, or
- is experiencing a substantially similar circumstances related to COVID-19 as specified by the Department of Health and Human Services, in consultation with the Department of Labor.
This paid sick leave has a cap of $511 per day and $5,110 in total for a use described in the first three conditions described above; and $200 per day and $2,000 in total for a use described in the other conditions.
An employer whose employee is a health care provider or an emergency responder is not required to provide paid family leave or paid sick leave under this Act.
Employers with fewer than 50 employees may seek an exemption from the Department of Labor for paying family leave and sick leave related to school/child-care closure if they can show that providing such pay “would jeopardize the viability of the business as a going concern.”
The FFCRA also has a notice requirement that employers must comply with. Per the Act, employers must post the notice “in conspicuous places on the premises of the employer where notices to employees are customarily posted.”
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid family leave or sick leave, or who files a complaint or institutes a proceeding under or related to paid family leave or sick leave. Employers that do so or who otherwise fail to follow the FFCRA may be subject to liability in civil suits, fines, or imprisonment.
Finally, the FFCRA provides tax credits to employers and self-employed individuals. Employers are entitled to a payroll tax credit equal to the amount in family leave and sick leave paid to employees under the Act. Self-employed individuals are entitled to an income tax credit based on the number of days that the individual was unable to work because of COVID-19 and 67% of their average daily income for the year, to a maximum of $200 per day. A tax professional should be consulted prior to seeking any applicable tax credits.
FFCRA is just one of many critical legal issues faced by employers during this difficult time. For more information about FFCRA or any other employment issues, contact partner Rich Reese in LGC’s San Diego office.