What Employers Need To Know Now
President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020 in an effort to give workers help in the face of the coronavirus pandemic. With the FFCRA have come many questions about its implementation – implementation which goes into effect now and will affect scores of employees. I have already fielded many calls from employers, and while there is much to know about the FFCRA, with additional regulations anticipated soon, I want to address some pressing, initial issues here.
The FFCRA became effective April 1, 2020 and applies to leave taken between April 1, 2020 and December 31, 2020. The FFCRA will not be applied retroactively.
The first thing you must do is print and read a copy of the Employee Rights Notice regarding the FFCRA found here.
If you read nothing else, the Notice will give you a good initial introduction as to what the FFCRA is all about. The Notice specifies the 6 reasons an employee is able to take paid leave under the FFCRA. These 6 reasons (called “qualifying reasons”) are the only reasons for which paid leave may be taken under the FFCRA – although there may be other reasons that apply (i.e., ADA, FMLA, etc.), which are not discussed here.
The Notice must be posted with the other government-type notices, and basically every place employees report to work. Hence, if employees report to more than one place, then it must be posted there as well. If you have workers now at home (who are working remotely, and thus will not see the Notice), you can regular mail or email this Notice to them as well (keep verification of sending for your records). A simple message will suffice, i.e.: “Attached (or enclosed) please find a copy of an Employee Rights Notice recently published by the Department of Labor regarding certain rights due to the COVID-19 Coronavirus epidemic.” Recently laid off or separated employees need not be sent this Notice (because they are no longer employees); new applicants will receive notice by virtue of it being posted in a place of work to which they report or, if remote work is what they are being hired to do, then provide a copy to them at or near the time of hire.
FFCRA – Nuts and Bolts
The basic nuts and bolts, or essential elements, of the FFCRA are these: it allows employees who meet 1 of the 6 qualifying reasons to apply for and receive up to 2 weeks [i.e., 80 hours] of paid leave because they are unable to work (including telework). The 6 qualifying reasons are if the employee:
1. is subject to a governmental quarantine order related to COVID-19;
2. is advised by a health care provider to self-quarantine related to COVID-19;
3. has COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual (need not be a family member) subject to an order described in (1), or self–quarantine (2);
5. is caring for their child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services
After the 2 weeks of paid leave, the employee may request 10 additional weeks of paid leave for reason #5 above. The rates of pay and maximum limits are set forth in the notice. Because the FFCRA applies through December 31, 2020, leave can be taken at any time during that period and does not need to be taken consecutively.
While employees asking for an extra 10 weeks must have been employed at least 30 days prior to the leave request, there is no such employment service requirement for the first 2 weeks of paid leave.
Good (Tax) News for Employers
As a private employer of less than 500 employees, you will likely qualify for a dollar-for-dollar reimbursement through tax credits, for all qualifying wages paid under the Act. Credits also extend to amounts paid or incurred to maintain health insurance coverage. Your tax preparer will know more about that. Nevertheless, you will be required to keep and provide certain information to receive credits and thus can and should ask the employee requesting paid leave (due to 1 of the 6 qualifying reasons) for documentation to support their sick leave request, including: their name, qualifying reason for the leave, statement that they are unable to work (on site or, if possible, via telework), the date(s) leave is requested, and, depending on the type of leave requested: written documentation by a health care provider advising the employee to self-quarantine due to COVID-19 concerns, notice of school closure, place of care, or childcare provider (which may be an official posting on the entities’ website, or email from the provider).
Paid Time Off
Leave paid pursuant to the FFCRA may not be diminished by the employer; FFCRA payments are in addition to any paid time off (PTO) available under an employer’s existing PTO policies. Employers cannot force their employees to use their accrued PTO before receiving emergency pay under the FFCRA. However, an employee may choose to use existing paid vacation, personal, medical or sick leave from the employer’s paid leave policy to supplement the amount the employee receives from FFCRA paid leave, up to the employee’s normal earnings. For example, if the employee receives 2/3 of their normal earnings from FFCRA leave pay, and the employer permits, the employee may use their preexisting employer-provided paid leave to receive the additional 1/3, so that the employee receives a full pay.
Enforcement and the Honeymoon Period
The Wage and Hour Division (WHD) of the Department of Labor is the branch of government charged with investigating and enforcing the FFCRA. The WHD has announced that it will not bring any enforcement action based on a violation of the FFCRA through April 17, 2020 so long as the employer acts reasonably and good faith in pursuing compliance with the FFCRA. After April 17, 2020, however, employers will be subject to penalties and other enforcement measures for non-compliance.
If you need help wading through the murky waters of the FFCRA, please contact the Pennsylvania employment lawyers, serving York, Lancaster, Adams, Dauphin and surrounding counties at Trinity Law.