On March 18, 2020, President Trump signed HR 6201, the Families First Coronavirus Response Act (FFCRA), into law. The act provides for paid sick time, protected paid family leave, and insurance coverage for private employers with fewer than 500 employees, and public sector employers of one or more employees. The law goes into effect 15 days after signing and stays in effect through December 31, 2020. Major provisions of the law include:
Paid Sick Time
The FFCRA requires that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work or telework due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised, as described in paragraph (2).
(5) 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.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Paid sick leave applies to all employees, regardless of how long the employee has been employed. Full-time employees are entitled to 80 hours of paid sick time. Part-time employees are entitled to a proportional amount of hours equal to their average hours worked over a two week period. An employer may not require an employee to use other paid leave before the employee uses the paid sick time available. There is no current guidance on how this applies to employers who also provide PTO, personal, or vacation time.
Paid sick time is capped at $511 per day or $5,110 in total, for leave taken due to employee illness, suspected illness, or isolation (reasons (1), (2), and (3)above). The cap for when the employee is needed to care for someone else (reasons (4), (5), and (6), above) is $200 per day or $2,000 in total.
The rate of pay is the greater of either the employee’s regular rate of pay, the Federal minimum wage, or the applicable State minimum wage for leave taken due to employee illness. However, paid sick time is reduced to two-thirds (2/3) this rate for when absences are due to the employee’s need to care for someone else.
Paid FMLA Leave
The FFCRA amends the Family Medical Leave Act (FMLA) to provide 12 weeks of protected leave to any employee who has been employed for at least 30 days and is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. After the first ten days of this leave, the employee is entitled to pay at two thirds (2/3) the rate of their regular rate. This leave provision is effective 15 days from the date the FFCRA is enacted and ends on December 31, 2020.
Note that paid FMLA leave is not available for an employee who is needed to care for a family member other than a son or daughter. Rather, under such circumstances, and assuming the illness qualifies as a serious health condition, the FMLA will only provide leave protection (no pay).
For both paid sick time and paid FMLA leave, the FFCRA grants the Secretary of Labor the authority to exclude certain health care providers and emergency responders and to allow the employer of such workers to opt-out. A similar exemption may be issued for small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern. The Secretary of Labor has yet to issue regulations, so it is not yet known if these exclusions will apply.
Group health plans and insurers offering group or individual health insurance must cover FDA-approved COVID-19 tests without cost-sharing, pre-authorization, or other medical management requirements. The coverage must include related services furnished during urgent care, emergency room, in-person, or telehealth provider visits that result in an order for, or administration of, a covered diagnostic test.
The legislation provides payroll tax credits for employers that make required sick or family and medical leave payments. The credit is increased for expenses the employer pays or incurs to provide and maintain a group health plan.
What you need to know
While the sick leave and FMLA leave provisions are listed separately, it’s essential to understand how they intersect, and how they don’t.
Paid sick time applies to all employees regardless of how long they’ve been employed. Employees who will be taking FMLA leave under the expanded FMLA leave provisions in this bill may also use the paid sick time to cover the first unpaid ten days of the FMLA. For employees not eligible for FMLA, paid sick time can still be used for time away.
Again, this law takes effect 15 days from signing, so employers have a couple of weeks to adjust and prepare. This is quickly moving, and there will be more clarifications in the coming days. Employers Council is here to help, please call or email us with questions.