The U.S. federal government recently passed the Families First Coronavirus Response Act (“FFCRA”) to provide additional protections for employees forced to take leave as a result of the COVID-19 virus. President Trump signed the FFCRA into law on March 18, 2020 and the U.S. Department of Labor has since provided additional instructions on its implementation. Below are some key takeaways for employees and employers from the law itself and the U.S. Department of Labor’s guidance. Please bear in mind that these points represent a summation of a 45-page law and do not provide legal advice. If you have specific questions about the law or its implementation, you should consult with an attorney. The attorneys at Kemp, Schaeffer & Rowe remain open for business to assist our clients. We offer consultations via Facetime, telephone or Zoom conferencing as we stay committed to our clients and the practice.
- The FFCRA provides three main benefits to employees taking leave from work during the COVID-19 crisis:
- The FFCRA provides up to 80 hours of paid sick leave at full pay to employees who are quarantined, have been advised by a health care provider to self-quarantine, or who exhibit symptoms of COVID-19 and are seeking diagnosis.
- The FFCRA provides up to 80 hours of paid sick leave at two-thirds (2/3) pay to employees who are unable to work because of other factors related to quarantine (for example, they need to be at home to care for a child).
- Finally, the FFCRA provides for up to 10 weeks of expanded family and medical leave at two-thirds (2/3) pay to some employees if the employee is unable to work for reasons related to COVID-19 or school closures caused by COVID-19.
- The FFCRA does not apply to all employers:
- With respect to the private sector, the FFCRA exempts private businesses that employ 500 or more employees at the time the leave is requested. The Secretary of Labor may exempt private businesses that employ fewer than 50 employees if complying with the FFCRA would jeopardize the viability of the business. The Secretary of Labor may also exempt private businesses that employ health care providers and emergency responders.
- With respect to the public sector, the FFCRA does not provide exemptions to employers based on their number of employees. All public employees will receive the paid sick leave However, the expanded family and medical leave may not apply to all public sector employers.
- Only employees who have been employed for at least 30 days at a non-exempt employer are also entitled to the expanded family and medical leave. This limitation does not apply to the paid sick leave benefits.
- The first ten days of the expanded family and medical leave benefits may be unpaid. However, an employee may substitute any accrued vacation leave, personal leave, or sick leave including the paid sick leave provided by the FFCRA for these ten days of unpaid leave. The amount of compensation for the expanded family and medical leave is capped at $200 per day and $10,000 in the aggregate
- Non-exempt employers must post a notice of employees’ rights under the FFCRA in a conspicuous place on the businesses’ premises. The U.S. Department of Labor’s model notice is provided here.
- Non-exempt private sector employers are entitled to reimbursement through tax credits for all qualifying wages paid under the FFCRA.
- Any non-exempt employer that discharges, disciplines, or discriminates against an employee for taking paid sick leave under the FFCRA may be held accountable through a private right of action with the same penalties and remedies available under the Fair Labor Standards Act of 1938, including actual damages, reasonable attorney’s fees, and the costs of the action.
- If an employee of a non-exempt employer takes advantage of the expanded family and medical leave, the non-exempt employer is required to restore an employee to the same position the employee held once the employee returns to work. However, employers who employ fewer than 25 employees may be exempt from the requirement to restore the employee to the same position if the position no longer exists due to the COVID-19 crisis and the employer makes reasonable efforts to restore the employee to the same position and alert the employee if an equivalent position becomes available.
- All requirements, rights, and remedies under the FFCRA are scheduled to expire on December 31, 2020.
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