Congress passed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020. Of particular interest to employers, the new law responds to the pandemic by mandating paid sick leave, paid family and medical leave, and enhanced unemployment compensation benefits. Recently, the U.S. Department of Labor (DOL) issued temporary regulations that clarify coverage, and the scope and application of leaves, under the FFCRA. The FFCRA and the regulations are in effect from April 1, 2020, to Dec. 31, 2020.

The FFCRA covers private employers with fewer than 500 employees and certain public employers. Within the FFCRA, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) provide leave to help workers affected by COVID-19. Employees who take EPSLA or EMFLEA can continue their coverage under the employer's group health by paying their existing premiums.

Covered private employers can be reimbursed through tax credits for amounts paid to employees for sick leave and qualifying family and medical leave wages and for allocable costs to maintain health care coverage for employees on leave.

Paid Sick Leave: Six Reasons for EPSLA Leave

(1) Employee is unable to work because they are subject to a federal, state, or local COVID-19 quarantine or isolation order. The regulations clarify that this qualification applies to employees who cannot work or telework due to shelter-in-place orders. However, leave is only available if the employer had work available. The regulations emphasize that employees subject to shelter-in-place orders may not take paid sick leave if they are able to telework, provided there is available work, the employer allows the employee to telework, and there are no extenuating circumstances that prevent the employee from performing that work (such as a COVID-19 related power outage).

(2) Employee is unable to work because they have been advised by a health care provider to self-quarantine for a reason related to COVID-19. The advice must be based on the health care provider's belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19, and self-quarantining must prevent the employee from working, even remotely.

(3) Employee is experiencing symptoms of COVID-19 (as identified by the U.S. CDC) and is seeking a medical diagnosis. Leave taken for this reason is limited to the time the employee is unable to work because they are taking affirmative steps to obtain a medical diagnosis. This includes time spent making, waiting for or attending an appointment for a COVID-19 test. It also includes an employee who seeks a test, is told that they do not meet the criteria for testing, but is advised to self-quarantine, if that prevents the employee from working or teleworking and work is available. It does not include employees who are self-quarantining without seeking a medical diagnosis or waiting for test results, but are able to and allowed to telework (unless the COVID-19 symptoms prevent them from doing so).

(4) Employee is unable to work because they need to care for someone who is either: (a) subject to a federal, state or local quarantine or isolation order; or (b) has been advised by a health care provider to self-quarantine based on a belief that he or she has COVID-19, may have COVID-19 or is particularly vulnerable to COVID-19. This reason only applies if, but for the need to care for an individual, the employee would be able to work. It would not apply if the employer does not have available work. Moreover, the individual being cared for must be an immediate family member, roommate or someone similar with whom the employee has a relationship that creates an expectation that the employee would provide care.

(5) Employee is unable to work because they need to care for a son or daughter if: (a) the child's school or place of care has closed; or (b) the child care provider is unavailable, for COVID-19 related reasons. As before, the employee must be able to work but for the need to care for their son or daughter. So the leave would not apply if the employer has no work for the employee. Paid sick leave is only available if the employee needs to care, and actually is caring, for their child. It is not available if someone else, such as a co-parent, guardian or child care provider, is available to provide the care.

(6) Employee is unable to work because they are 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. No such conditions have yet been identified.

Paid Sick Leave: Calculating the Amount of Leave

A full-time employee (i.e., one who is normally scheduled to work at least 40 hours per week) is entitled to 80 hours of paid sick leave. A part-time employee is entitled to the "number of hours that such employee works, on average, over a two-week period." The regulations specify how to calculate the average number of hours for part-time employees and those with an irregular daily work schedule.

The amount of paid sick leave is capped at $511 per day and $5,110 in total if the employee is taking the leave for self-care. If the employee is caring for someone else, the employee receives two-thirds pay, subject to a cap of $200 per day and $2,000 in total.

Extended Family Leave

The EFMLEA amends the FMLA to provide eligible employees up to 12 workweeks of expanded family and medical leave. The leave is available for employees who have been employed for 30 days (with certain exceptions) and need the time off to care for a child whose school or place of care is closed, or unavailable, for a COVID-19 related reason.

Any EFMLEA leave counts against the 12 workweeks of FMLA leave to which employees are otherwise entitled. An employee may elect to use, or an employer may require an employee to use, accrued leave otherwise available to the employee, such as vacation or paid time off, concurrently with EFMLEA leave.

EFMLEA leave is unpaid for the first two weeks, though the paid sick leave discussed above is available for that period to provide a continuous stream of income. For each day of extended family leave after that first two weeks, the employer must pay the employee two-thirds of their regular rate times the number of hours the employee would normally be scheduled to work that day, up to a maximum of $200 per day or $10,000 in total for the additional 10 workweeks.

Exemptions for Health Care Providers and Emergency Responders

The EFMLEA and EPSLA permit employers to exempt from coverage employees who are health care providers or emergency responders, which terms are defined broadly in the regulations. Employers should review the full definitions before exempting their employees. Nothing in the FFCRA prevents such employees from taking other accrued leaves or time off pursuant to their employers' policies.

Employer Coverage and Hardship Exemption

The determination of whether an employer has fewer than 500 employees under the FFCRA is made when an employee takes leave, and includes full- and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another entity and day laborers supplied by a temporary placement agency, but excludes those working outside the U.S. The test for determining joint employment is the same used under the Fair Labor Standards Act.

The FFCRA gives the Secretary of Labor authority to exempt employers with fewer than 50 employees from providing leave to employees to care for children whose school or child care is closed, if doing so would jeopardize the viability of the business as a going concern as that term is explained in the regulations. Employers using this exemption should not send supporting materials or documentation to the DOL, but rather retain such records.

Employees Returning from Leave

In most situations, an employee returning after taking paid leave under the EPSLA or EFMLEA will be entitled to return to the same or an equivalent position. Employees who would have been laid off for reasons unrelated to their taking leave are not protected. The burden will be on the employer to show that the employee would have been laid off, or not rehired with other laid off employees, regardless of taking the leave.

These restoration requirements do not apply to employers with fewer than 25 employees that can show certain extenuating circumstances set forth in the regulations. In addition, the FMLA provisions regarding restoration of "key" employees would apply.

Effect of Other Laws, Employer Practices, Agreements

Paid sick leave and expanded family leave rights are in addition to any other right or benefit to which the employee is entitled, and may not be denied because the employee has already taken another type of leave. In addition, no employer may require, coerce or unduly influence an employee to use another source of paid leave before taking expanded family leave.

Enforcement

Employers are prohibited from discharging, disciplining or discriminating against employees because they took or applied for protected leave. In addition, employers who fail to provide paid sick leave can be liable for failing to pay the minimum wage. Employees may bring such claims individually or on a class-wide basis, and can recover liquidated damages and attorney fees. Repeated or willful violations subject the employer to additional penalties and damages. For purposes of the EFMLEA, employers are subject to normal FMLA enforcement procedures. However, if an employer had fewer than 50 employees during each of 20 or more calendar workweeks in the current or preceding calendar year, the employee may not bring a private action for violation of EFMLEA.

Catherine T. Barbieri is a partner with Fox Rothschild in Philadelphia. She serves as co-chair of the firm's Labor & Employment Department. Eileen Oakes Muskett is a partner with Fox Rothschild, co-chair of the Product Liability & Mass Torts Group, and Managing Partner of the firm's Atlantic City office.