President Trump signed Bill H.R. 6201 into law on March 18th, 2020 as part of the federal government’s response to the coronavirus (“COVID-19”) emergency. The Families First Coronavirus Response Act (hereinafter, the “FFCRA”) will take effect no later than fifteen (15) days after its enactment and will remain in effect through December 31, 2020.

As it pertains to the employment landscape, the FFCRA provides for paid leave under the Family and Medical Leave Act (“FMLA”) and paid sick leave while providing tax credit benefits to employers. It is important to note that both the paid FMLA and paid sick leave apply only to private employers with less than 500 employees and certain public employers. Below are the relevant provisions of the FFCRA:

A. FFCRA Amends FMLA in response to COVID-19

The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act (“FMLA”) for the purpose of creating the Public Health Emergency Leave (the “Emergency Leave”). The Emergency Leave allows an eligible employee who is unable to work (or telework) to take leave due to a need to care for the employee’s son or daughter (under 18 years of age) if the school (elementary or secondary) or place of care of the employee’s child has been closed, or the child care provider of such son or daughter is unavailable, due to a “public health emergency.” Public health emergency is defined as an emergency with respect to COVID19 declared by a federal, state or local authority.

The following rules apply under the Emergency Leave:

• The first 10 days of leave due to a school or day care closure may consist of unpaid leave. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.
• Subsequent absences must be paid at 2/3 the employee’s regular rate of pay, provided that in no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.
• Employers have the obligation of reinstating the employee to the same equivalent position upon their return to work.
• Employers with less than twenty-five (25) employees will be exempt from this requirement if the employee’s position does not exist after returning from leave, provided the following conditions are met: the employee takes leave; the position
held by the employee when the leave commenced does not exist due to economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by a public health emergency during the period of leave; the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment;
and that, if reasonable efforts to restore fail, the employer make reasonable efforts to contact the employee if an equivalent position becomes available during a 1-year period beginning on the earlier of (i) the date on which the qualifying need related to a public health emergency concludes or (ii) the date that is 12 weeks after the date on which the employee’s leave commences.

B. Paid Sick Leave in response to COVID-19

By way of the Emergency Paid Sick Leave Act, the FFCRA provides that employers with less than 500 employees must immediately make available 80 hours of paid sick leave for full-time employees, or, for part-time employees, the equivalent of the average number of hours the employee works, on average, over a 2-week period, for the following reasons:

• Employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19, or caring for an individual subject to said orders;
• Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or caring for an individual subject to said advise;
• Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
• Employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child-care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
• Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employers may not require, as a condition of providing paid sick leave under the FFCRA, that the employee involved search for or find a replacement to cover the hours during which the employee is using paid sick leave. Paid sick time shall not carry over from one year to the next.

The Emergency Paid Sick Leave Act also provides:

• An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick leave under the Emergency Paid Sick Leave Act.
• Paid sick leave is paid at the employee’s regular rate, but subject to cap of $511 per day and $5,110 in the aggregate if the reasons for leave are: (i) employee subject to federal, state or local quarantine or isolation order; (ii) employee has been advised by healthcare provider to self-quarantine; or (iii) employee is experiencing symptoms of COVID-19 and seeking medical diagnosis. If leave is for the other reasons set forth in the Emergency Paid Sick Leave Act, paid leave is subject to a cap of $200 per day and $2,000 in the aggregate.
• It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who (1) takes paid sick leave under the Emergency Paid Sick Leave Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Emergency Paid Sick Leave Act or has testified or is about to testify in any such proceeding.
• Employers that fail to comply with the Emergency Paid Sick Leave Act may be subject to penalties under the Fair Labor Standards Act of 1938.

C. Tax credits for paid sick and paid family and medical leave

Generally, Division G of the FFCRA provides for a refundable payroll tax credit for the employers subject to the FMLA Emergency Leave and required Emergency Paid Sick Leave discussed above. The tax credits will be applied against FICA taxes (Medicare and Social Security).

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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