COVID-19 ALERT for Employers

What Employers Need to Know about the Families First Coronavirus Response Act (“FFCRA”)

On March 18, 2020 the Senate passed and President Trump signed the FFCRA. Provisions of this bill are anticipated to go into effect no later than April 2, 2020. Employers with fewer than 500 employees need to be aware of their obligations under two components of the bill, namely:

(1)  The Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and

(2)  The Emergency Paid Sick Leave Act (“EPLSA”). 

The Emergency Family and Medical Leave Expansion Act

Q: Which employers must abide by the EFMLEA (“Emergency Expanded FMLA”)? 

A: Private employers with fewer than 500 employees are “Covered Employers”. 

Q: What does the Emergency Expanded FMLA require of Covered Employers? 

A: Covered Employers are obligated to allow eligible employees to take up to 12 weeks of job-protected leave to care for the employee’s child (who is under 18 years of age) if the child’s school or childcare provider is closed or unavailable due to COVID-19 issues (“COVID-19 Leave”).  The employee is expected to give reasonable advance notice of taking this leave when possible.

Q: Which employees are eligible to take COVID-19 Leave? 

A: Any employee who has worked for the employer for 30 days or more. This is a notably shorter window to qualify than the 12 months and 1250 hours worked that is required for an employee to be eligible for FMLA leave for a reason other than COVID-19 Leave. 

Q: How much time off may an eligible employee take for COVID-19 Leave?

A: Eligible employees are entitled to take a total of 12 weeks of leave during the time period starting 15 days after the date the bill is effective and ending December 31, 2020. Anticipating the bill becomes effective April 2, 2020, the window for an eligible employee to take COVID-19 Leave will be April 17th to December 31st of this year. 

Q: Is the COVID-19 Leave Paid or Unpaid?

A: First 10 days of EFMLA may be paid or unpaid: It is the employee’s choice whether to use their accrued paid leave for the first 10 days or whether to use EPSL (see below) (“COVID-19 Sick Pay”) so that the first 80 hours of EFMLA is paid. An employer cannot force an employee to use PTO or COVID-19 Sick Pay. 

After the first 10 days: The employer must pay the employee 2/3 of their regular rate up to $200 per day for the remainder of the COVID-19 Leave period, subject to a $10,000 cap over the entirety of the remaining 10 weeks of the COVID-19 Leave period. 

Q: Do I have to give the employee their job back when they return from COVID-19 Leave?

A: Generally, yes, an employee who takes FMLA leave must be restored to the employee’s position (or one that is substantially equivalent) on return from such leave. However, if (a) the employer has fewer than 25 employees and (b) the employee’s position “ceases to exist due to economic conditions or other changes in the operating conditions of the employer caused by a public health emergency” during the period of leave, the employer may be excused from returning the employee to the same position.

Q: Do I need to document the COVID-19 Leave?

A: The Department of Labor has various forms available for use when employees request and/or take FMLA leave. Unless and until the DOL issues new forms or supplemental forms, we suggest that you use the DOL’s existing forms, with additional documentation for COVID-19 Leave. Please contact us and we can work with you in managing your processes, including documentation, related to COVID-19 leave issues. 

Q: What does retaliation and discrimination have to do with the Emergency Expanded FMLA?

A: Like FMLA leave, the same prohibitions on discrimination and retaliation apply in the case of an employee asking to take, or taking, leave pursuant to the Emergency Expanded FMLA.

Q:  Is there relief available to help employers cover the cost of paying up to the $10,000 per employee who has taken COVID-19 Leave?

A:  Yes.  The FFCRA provides for credits against the employer’s quarterly payroll taxes in an amount equal to 100 percent of the qualifying wages the employer paid pursuant to the Emergency Expanded FMLA. Wages paid under the FFCRA are exempt from the employer portion of the Social Security Tax and an additional payroll tax credit is allowed for the amount of Medicare tax paid on those wages. More information about this provision will be included in Treasury Regulations that are yet to be drafted. Please consult your tax professional for further details regarding these tax credits.  

Q: Are there any exemptions or exclusions to application of the Emergency Expanded FMLA to Covered Employers?

A: Employers with fewer than 50 employees may be exempted, but that is not currently the case.  Health care providers and emergency responders may also be excluded as eligible employees.

Q: Anything else I need to know about the Emergency Expanded FMLA?

A: If your company is familiar with FMLA leave and has protocols in place to handle the documentation of FMLA leave, this process for handling leave under the newly enacted expanded legislative package will be familiar.  However, if your company is unfamiliar with the FMLA process, documentation requirements, and obligations before, during, and after an employee’s request or need for leave, please contact us. 

The Emergency Paid Sick Leave Act

Q: Which employers must abide by the EPSLA? 

A: Private employers with fewer than 500 employees (“Covered Employers”).

Q: What does EPSLA require of Covered Employers? 

A: Covered Employers are obligated to pay employees 2 weeks of paid sick leave for EPSL qualifying reasons. 

Q: Which employees are eligible for EPSL? 

A:  All employees must be able to immediately use this paid sick leave regardless of how long the employee has worked for the employer. 

Q: What are the qualifying reasons for an employee to receive [COVID-19] Emergency Paid Sick Leave (“EPSL”)?  

A: Employees may use EPSL for the following reasons:

   Self-Care Reasons

1. To comply with a federal, state, or local quarantine or isolation order related to COVID-19.
2. To follow advise of a health care provider to self-quarantine due to COVID-19 concerns.
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

Care-for-Others Reasons

1. To care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2. To care for an individual who has been advised by a health care provider to self-quarantine due to COVID-19 concerns.

Child-Care Reason

1. To care for the employee’s child (who is under 18 years of age) if the child’s school or childcare provider is closed or unavailable due to COVID-19 precautions

Q: Can an employee use EPSL for the first two weeks they are out on COVID-19 Leave under the Emergency Expanded FMLA?

A: Yes. An employee who is eligible to take COVID-19 Leave (see previous section) may elect to be paid for the first two weeks of that leave by using EPLS.

Q: How is the EPSL pay calculated?

A: Full-time employees are to be paid 80 hours of paid sick leave.

Part-time employees are to be paid an amount equal to the average number of hours the part-time employee works over a 2-week period. For example, if a part-time employee works 25 hours a week on average, the employer must pay that employee 50 hours. 

Q: May I require my employees to first use up any accrued paid vacation or sick time they have previously earned while working before I pay them EPSL?

A: No. 

Q: How is the amount of EPSL calculated?

A:  For Self-Care Reasons, EPSL must be paid at the employee’s regular rate of pay, subject to a cap of $511/day and $5,110 total.

For Care-for-Others Reasons, EPSL must be paid at the employee’s regular rate of pay, subject to a cap of $200/day and $2,000 total.

For Child Care Reason, EPSL may be paid at the employee’s regular rate of pay, subject to a cap of $200/day and $2,000 total.

Q: Does the employee need to give me notice before they take time off? 

A: The employee should give you advance notice when possible. 

Q: Can I require them to find a replacement for their position to cover their duties while they are out?

A: No. 

Q:  Is there relief available to help employers cover the cost of EPSL?

A:  Yes.  The FFCRA provides for credits against the employer’s quarterly payroll taxes in an amount equal to 100 percent of the qualifying wages the employer paid pursuant to the EPSL. Wages paid under the FFCRA are exempt from the employer portion of the Social Security Tax and an additional payroll tax credit is allowed for the amount of Medicare tax paid on those EPSL wages. More information about this provision will be included in Treasury Regulations that are yet to be drafted. Please consult your tax professional for further details regarding these tax credits.  

Q: Are there any exemptions or exclusions to application of the EPSLA to Covered Employers?

A: Employers with fewer than 50 employees may be exempted, but that is not currently the case.  Employers may also be allowed to exclude health care providers and emergency responders from the definition of “eligible employee”. 

Also, only employers that are covered by the existing requirements of the FMLA (those employers with 50 or more employees in a 75-mile radius for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year) are subject to penalties in a suit brought by an employee for violation of the leave entitlement granted by the new qualifying reason.

The Secretary of Labor can adopt regulations that could exempt small businesses (fewer than 50 employees) from compliance, but it remains to be seen whether the SOL will do so.

Q: Anything else I need to know about the EPLSA?

A: Employers must post a notice regarding the requirements of the Emergency Paid Sick Leave Act. The Department of Labor should issue a model notice shortly after the bill is enacted. The bill also contains anti-discrimination and anti-retaliation provisions.

This alert is for informational purposes only and should not be considered legal advice.  

Please consult with your legal counsel regarding any specific situation, particularly given that this is a new statute without implementing regulations at this time.

For further guidance on the legal issues facing employers regarding this virus, contact: 

Michelle Morgan
mmorgan@shackelford.law
214-780-1417
Cell no. 214-502-1200
Board Certified Labor & Employment by the Texas Board of Legal Specialization 

Caryn Campbell
ccampbell@shackelford.law
214-780-1399  

Worthy Walker
wwalker@shackelford.law
214-780-1319 

Derek Rollins
drollins@shackelford.law
214-780-1425 

Links to Resources: 

U.S. Government Coronavirus information website:
https://www.usa.gov/coronavirus 

World Health Organization Coronavirus website:
https://www.who.int/emergencies/diseases/novelcoronavirus-2019 

CDC Coronavirus website:
https://www.cdc.gov/coronavirus/2019-ncov/index.html 

Texas State Department of Health:
https://www.dshs.texas.gov/ 

Dallas County Health Department:
https://www.dallascounty.org/departments/dchhs/ 

Department of Labor Coronavirus Resources:
https://www.dol.gov/coronavirus 

OSHA Covid-19 resources website:
https://www.osha.gov/SLTC/covid-19/  

OSHA Guidance on Preparing Workplaces for Coronavirus:
https://www.dol.gov/newsroom/releases/osha/osha20200309 

EEOC Coronavirus information:
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm