Construction Law Blog

On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (“FFCRA”). This new legislation contains a number of components designed to address the current COVID-19 pandemic, but two aspects of the FFCRA related to emergency sick leave and emergency family and medical leave will be of immediate concern to many employers. Below are answers to key questions for private employers about the FFCRA leave requirements. For specific applications of these new requirements to your workforce, when in doubt, consult experienced employment law counsel.

When do the new paid leave laws go into effect?

April 2, 2020. The paid sick leave requirements are outlined in the section of the FFCRA known as the Emergency Paid Sick Leave Act. The new family and medical leave requirements are set forth in the section entitled the Emergency Family and Medical Leave Expansion Act. Both of these laws go into effect on April 2, 2020—15 days after the enactment of the FFCRA. 

Do the new paid leave requirements apply to my business?

If you are a private company that employs fewer than 500 employees, then the new paid leave laws apply to your business. Subsequent legislation may affect larger employers, but as of now, they have been excluded.

Which of my employees are covered?

 The paid sick leave law applies to all employees of covered employers. The paid family and medical leave requirements apply to employees who have been employed for at least 30 days. 

Can any employees be excluded?

Employees who are health care providers or emergency responders can be excluded from both the paid sick leave and paid family and medical leave requirements. 

What triggers emergency paid sick leave?

An employee can take emergency paid sick leave if the employee is unable to work (even by telework) for the following reasons:

• subjection to federal, state or local quarantine or isolation order related to COVID-19
• being advised by a health care provider to self-quarantine because of COVID-19
• experiencing symptoms of COVID-19 and seeking a medical diagnosis
• caring for an individual under quarantine/isolation order or self-quarantine
• caring for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 precautions
• experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services

What triggers emergency family and medical leave?

While an earlier version of the bill had a more expansive reach, the final FFCRA legislation applies only to employees who are unable to work (even by telework) because of a need to care for a son or daughter under the age of 18 if the child’s school or place of child care has been closed, or if the child care provider is unavailable, due to the COVID-19 public health emergency. 

Remember, if your company is covered by the standard provisions of the FMLA (companies with 50 or more employees), employees who need leave to care for their own serious health condition or that of a family member may still be entitled to ordinary FMLA leave, which is unpaid.

How much paid sick leave is allowed?

A full-time employee is eligible for 80 hours (two weeks) of paid sick leave. A part-time employee is eligible for the number of hours the employee works, on average, over a two-week period.

How is sick leave pay calculated?

The rate of pay depends on the reason for the leave. 

• If leave is necessary because the employee is under quarantine or is experiencing symptoms of COVID-19 and seeking treatment, then the employee receives his or her regular rate of pay up to $511/day and $5110 total.

• If leave is necessary for any of the other qualifying reasons (e.g., caring for children due to school closure), then the employee is only entitled to 2/3 or his or her regular rate of pay, with cap of $200/day and $2000 total

How much emergency family and medical leave is allowed?

This provision is an amendment to the existing FMLA, which provides 12 weeks of leave.  An employee who qualifies for emergency family and medical leave under the FFCRA is also entitled to 12 weeks of leave.

How is emergency family and medical leave pay calculated?

The first 10 days of leave are unpaid, but employees can elect to substitute any available paid leave (which would likely include the paid leave granted under the FFCRA) during that period. After the first two weeks, the remainder of the leave is paid at a rate of at least 2/3 of the employee’s regular rate of pay, with a maximum of $200 per day and $10,000 total.

Is emergency family and medical leave job-protected like ordinary FMLA?

In general, yes. But employers with fewer than 25 employees do not have to rehire an employee if his or her position is eliminated due to economic conditions or other changes that affect the employer’s operations that result from the public health emergency. Even then, however, the employer must makes reasonable efforts to provide an equivalent position and, if none is available, to contact the employee if an equivalent position becomes available during the next year following the conclusion of the emergency leave.

What if paying for this emergency sick or family and medical leave will ruin my business?

Paying for leave under the FFCRA will be a burden for many employers, especially smaller businesses.  There could be a potential lifeline, however, in the form of regulations issued by the Department of Labor.  Both the paid sick leave and paid family leave provisions state that the Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees if compliance would “jeopardize the viability of the business as a going concern.” 

No such regulations have yet been issued, but eligible companies should be on the lookout.

If my business does not qualify for an exemption, how is the paid leave funded?

The FFRCA does provide that refundable tax credits against employment taxes are available to employers required to provide emergency paid family and medical leave or emergency paid sick leave. 

• The credit is in an amount equal to 100% of the emergency family and medical leave and sick leave wages paid by the employer in the calendar quarter.

• Because the wages are also deductible, an employer using such credit must include in its gross income the amount of such credit taken for any calendar quarter. The employer may elect whether to take the credits each quarter.

Wages required to be paid by reason of the emergency paid sick leave and the emergency family and medical leave provisions are not subject to social security withholding taxes.