April 1, 2020
Russell L. Lichtenstein, Esq.
Today (April 1, 2020), the Federal Families First Coronavirus Response Act (“FFCRA”) goes into effect. The FFCRA provides certain benefits for employees directly impacted by illnesses related to the coronavirus and employees who have been required to care for a child as a result of the closure of a school or childcare facility or the unavailability of a childcare provider.
The FFCRA provides for two weeks (80 hours) of paid leave in connection with certain circumstances related to the coronavirus outbreak. Further, the FFCRA provides different benefits depending upon whether or not the leave is required as a result of direct health issues or in connection with the care of a child who has been displaced as a result of the closure of a school or childcare facility or provider.
With some exceptions, employers with less than 500 employees are covered by the FFCRA. The FFCRA provides businesses with less than 50 employees the ability to apply to the U.S. Department of Labor for an exemption from the provisions of the Act if providing the paid leave would “jeopardize the viability of the business.” Moreover, all employees of any employer covered are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Additionally, employees employed for at least 30 days are eligible for up to an additional ten weeks of paid family leave to care for a child under circumstances related to COVID-19.
Under the FFCRA, an employee will be qualified for paid sick leave if the employee is unable to work or telework due to a need for leave under the following circumstances:
- 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 healthcare provider to self-quarantine related to COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis with a medical professional;
- The employee is caring for an individual subject to an order related to a Federal, State or local quarantine or isolation order or is self-quarantined;
- The employee is caring for a child whose school or place of care is closed, or childcare provider unavailable, for reasons related to COVID-19; or
- An employee is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
In addition to the above, under the FFCRA, an employee qualifies for expanded paid family leave if the employee is caring for a child whose place of care is closed, or childcare provider unavailable, for reasons relating to COVID-19.
There is a significant distinction between the concept of a “quarantine or isolation order” and the current stay-at-home orders issued by many jurisdictions throughout the United States. “Quarantine” is defined in the Code of Federal Regulations as “the separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who are not yet ill, from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease.” “Isolation,” on the other hand, is defined as “the separation of an individual or group reasonably believed to be infected with a quarantinable communicable disease from those who are healthy to prevent the spread of the quarantinable communicable disease.”
Individuals who qualify for paid leave under the FFCRA are entitled to two weeks (up to 80 hours) of paid sick leave. The amount of the sick leave and certain limitations change depending upon the reason for the leave. For items 1 through 3, referenced above, an employee is entitled to paid sick leave at the employee’s regular rate of pay, or the applicable minimum wage, whichever is higher, up to $511 per day or $5,110 in the aggregate over a two week period.
For leave for reasons #4 and #6 referenced above, an employee taking leave is entitled to be paid at 2/3 of their regular rates or 2/3 of the applicable minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 in the aggregate over a two week period.
Additionally, the FFCRA provides for expanded benefits in connection with caring for a child whose school or place of care is closed or childcare provider is unavailable for reasons related to COVID-19 (reason #5, above). Specifically, the duration of the paid leave under these circumstances is extended for up to 12 weeks. Specifically, for the reasons referenced in reason #5, an employee would be entitled to be paid at the 2/3 calculation referenced above up to a maximum of $200 per day and $12,000 in the aggregate.
While the payments referenced above are paid by the employer, the FFCRA provides the employer with a tax credit for qualified FFCRA sick leave and family leave wages. This fully refundable tax credit is equal to the full amount of the required paid family and medical leave under the FFCRA. In addition, the tax credit also includes an eligible employer’s share of Medicare tax imposed on those wages as well as the cost incurred in maintaining health insurance coverage for the employee during the family leave period. Further, the employer is not subject to the employer portion of Social Security tax imposed on FFCRA paid sick and family leave wages.
The Act also requires the posting of a notice concerning employee rights under the Families First Coronavirus Response Act. A link to the U.S. Department of Labor Wage and Hour Division poster is embedded with this communication.
The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you in these very difficult times. Please reach out to Practice Group Chair Russell Lichtenstein at (609) 572-7676 or rlichtenstein@cooperlevenson.com in order to schedule a consultation on any employment related issues which you may be encountering during these most difficult times.
Please click HERE for the FFCRA poster on Employee Rights.
