Our Labor and Employment Team has been diligently collaborating with our public and private employment clients, and communicating with other practitioners in the field from all over Connecticut and the Nation, as we work to assist you in maneuvering the personnel-related “Tetris” that COVID-19 has sprung upon us. As Friday has arrived in a workweek of markedly unprecedented occurrences, we’d like to share with you our understanding of the federal
Families First Coronavirus Response Act
(FFRCA or the Act) that President Trump enacted late Wednesday (March 18, 2020).
Certainly, we do not expect this to be the
legislation that affects our employment clients, and in fact we look forward to the US Department of Labor (US DOL) regulations, which are directed by the Act to be released within the next two weeks, as we hope they will provide guidance and clarification for this new Act. At this time, however, we have closely reviewed the text of the Act, gleaning the following:
- The relevant provisions of the Act become effective on April 2, 2020, unless sooner by directive of the US DOL, and contain a sunset provision of December 31, 2020.
- The FFCRA temporarily expands the federal Family Medical Leave Act (FMLA) and institutes the first-ever federally mandated Paid Sick Leave Act.
- Existing federal FMLA job protection is temporarily afforded for 12 weeks to employees who require leave (FML) from work because they are unable to work or telework because they have school-aged children (under age 18) and childcare issues due to the closure of school and childcare providers as a result of COVID-19. This childcare provision does not require that the employee or the child(ren) are actually sick.
- The expansion of the FMLA applies to private employers with fewer than 500 employees, which is a change from the prior language of “50 or more employees,” and public agencies (i.e. local municipalities) of any size, which was not a change from the original language of FMLA. The federal FMLA has always applied to public agencies (as covered employers) regardless of public agency’s employee size. The Paid Sick Leave portion of the Act equally applies to these employers, expressly requiring a public agency to have at least one employee to be covered.
- The expansion of the FMLA establishes a requirement to provide paid FML to those employees who are unable to work (or telework) because of childcare issues related to the closing of schools/daycare due to COVID-19 precautions, for up to 12 weeks.
- Pay for purposes of the paid FML is 2/3 the employee’s regular rate of pay, up to a maximum of $200 per day capped at $10,000 aggregate. Specifically, the paid FML to be provided is to be calculated on an amount that is not less than 2/3 of an employee’s regular rate of pay, as determined under Fair Labor Standards Act (FLSA), and the number of hours the employee would otherwise be normally scheduled to work. We anticipate the US DOL regulations will assist in better understanding the calculation of the paid leave entitlement.
- The first 10 days of the FML may be unpaid, or the employee may use their own accrued PTO, if they have any. Note, however, that this is inconsistent with the new Paid Sick Leave provisions of the Act, which provides that two weeks of paid sick leave for childcare issues (no 10 day waiting period) are to be given, and expressly states that an employer cannot require employee to use their own PTO before obtaining this sick leave.
- Despite the fact that the expanded FMLA indicates that the first 10 days shall be unpaid, employers should defer to the greater benefit under the Paid Sick Leave portion of the Act providing Paid Sick Leave to cover those first 10 days of qualifying FML before turning to the paid FML provisions for the remaining weeks of leave. Note that employees appear to be entitled under the new law to a maximum of 12 weeks of qualifying leave, whether paid as Paid Sick Leave or paid FML; not 2 weeks of sick leave plus an additional 12 weeks of paid FML.
- The cap of $200 per day remains the same under both the FMLA/Paid Sick Leave portion – the aggregates are different however, likely due to the difference in length of time: 12 weeks FML/2 weeks (essentially 10 working days) Paid Sick Leave portion.
- The expansion of the FMLA does not address leave (paid or unpaid) for someone who is sick or who is required to care for some who is sick because of COVID-19 for the full 12 weeks. In that situation, an employee is entitled to two weeks of paid sick leave under the provisions of the Paid Sick Leave portion, which is a separate part of the larger Families First Coronavirus Response Act. Employees may still be eligible to take the full 12 weeks off as protected leave under the FMLA if they have a serious medical condition (coronavirus) or are caring for someone with it.
- Another change to the FMLA, applicable to this temporary expansion only, is a reduction in the length of time that an employee must have been employed by the employer to be eligible for the leave, reducing it from 12 months to 30 days (which effectively eliminating the 1250 hour requirement). Notably, the express language of the Act does not change other requirements for whether an employee is an eligible employee. There was no change made to the eligible employee provision of the FMLA that requires the employee to have been employed at a worksite with at least 50 or more employees within a 75 mile radius. Therefore, although an employer may now be a covered employer for purposes of this expansion, the employee's eligibility still (arguably) appears to require employment at a site with 50 or more employees, unless and until the US DOL issues regulations that clarify this issue.
- The FMLA expansion specifically states that small businesses with fewer than 50 employees may be exempt from the provisions to require the leave if when the imposition of such requirements would jeopardize the viability of the business as a going concern. This statement in the Act calls into question whether the intent to exclude these employers is automatic or requires a substantiation of business concern.
- Nothing has changed in the FMLA with respect to certification and documentation so employers are still able to obtain certification/documentation from employees as to the requirement for the leave. A note of caution, however, employers may need to be creative and/or lenient with the required medical documentation as healthcare professionals may be overrun and unable to provide in a timely fashion.
- The Paid Sick Leave portion of the Act requires private employers with fewer than 500 employees, and public agencies with at least one employee, to provide paid sick leave for 2 weeks to any employee (except healthcare and emergency response workers) who is unable to work or telecommute for these reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) has been advised as described in paragraph (2).
- The employee is caring for a son or daughter of such employee 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.
- The 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.
- The law articulates that an employee (for reasons 1-3 above) shall be paid their regular rate of pay but places caps on the amount of money that must be paid at $511 per day/$5110 aggregate and $200 per day/$2000 aggregate for an employee who must take leave for reasons 4-6 above. Furthermore, the law states that if the reason is one of 4-6 above, then the employee’s regular rate of pay for leave purposes is 2/3 of the employee’s actual regular rate of pay. Still, the cap of $511/$200 per day remains in place.
- Employers are required to post notices about the Act basic provisions; the Secretary of Labor is directed to make publicly available a model notice within 7 days after the date of enactment of the Act, so we can expect to see this released in the next week and will ensure that our clients are aware of the requisite postings.
- There is an exception to both the FMLA expansion and the Paid Sick Leave portion of the FFCRA that permits employers from excluding emergency responders and healthcare workers from both; our understanding is that with respect to the “emergency responders,” the intent was for Police, Fire, EMS, and 911 Dispatchers to be included, however, we anticipate the US DOL regulations will provide insight into just how broadly that provision is to be interpreted.
- Since the provisions of both Acts do not take effect until April 2, 2020, any provision of these benefits to employees sooner than April 2, 2020 is not expected to “count” for purposes of either Act so employers may elect, in the interim, to allow their employees to enter an unpaid status and/or to use other accrued PTO they have available to them.
Disclaimer: The information you obtain in this email is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.