Question:

What is the Emergency Paid Sick Leave Act of the FFCRA and how does it differ from the benefits offered to employees under California sick leave law?

Answer:

On March 18, 2020 President Trump signed the Families First Coronavirus Response Act, or the FFCRA, into law. This law, which took effect on April 1, 2020, was the first substantive federal response to COVID-19.

The FFCRA contains eight “divisions,” and one of these divisions addresses paid sick leave. This sub-act is the “Emergency Paid Sick Leave Act.” Under the Emergency Paid Sick Leave Act, coupled with other divisions in the FFCRA, an employee may be entitled to leave under both sub-acts, resulting in up to 12 weeks of paid leave! In this blawg post, we’re only going to focus on the Emergency Paid Sick Leave Act, as that is quite a lot to tackle on its own!

But before we dive into the Emergency Paid Sick Leave Act, let’s go over some basics of the FFCRA to orient ourselves.

FFCRA Basics

The FFCRA only applies to employers with less than 500 employees. All such subject employers must provide employees of their potential rights under the FFCRA by April 1, 2020. The Department of Labor has created posters to help employers do this, which can be accessed in a number of languages here. Normally, notices should be posted conspicuously in the workplace, but given that many employees are working remotely, notices may be “posted” several ways: (1) by emailing to employees; (2) by direct mail to employees’ home address; or (3) posting somewhere electronically– like a shared drive or internal company portal.

Leave under the FFCRA is only available to active employees who are unable to work or telework due to at least one qualifying reason. We’ll get to those qualifying reasons in just a moment! Leave may be taken intermittently while teleworking, depending on the circumstances. Health care providers and emergency responders are not entitled to benefits under this law.

Additionally, any benefits extended to an eligible employee under this law will only apply until December 31, 2020. Unless otherwise amended, the current benefits under this law will “sunset” or end on that date.

Now, onto the Emergency Paid Sick Leave Act!

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act provision of the FFCRA is broad and encompasses several different scenarios that would require an employer to provide paid sick leave to an employee.

Perhaps most important to note is that any paid leave provided under the Emergency Paid Sick Leave Act is in addition to any paid leave an employee may have under the employer’s pre-existing paid leave policy, and an employer may not require an employee to use any other type of pre-existing paid leave prior to utilizing the paid leave extended under the Emergency Paid Sick Leave Act.

The FFCRA applies to businesses (including nonprofit entities) with 1-499 employees. However, there is an exemption for businesses with fifty (50) employees or less. We’ll dive into the exemption in just a moment.

How Much Leave are Employees Entitled to Under the Emergency Paid Sick Leave Act?

The Emergency Paid Sick Leave Act provisions provide eighty (80) hours, or ten (10) days, of paid sick leave to full-time employees, for qualified reasons. For the purposes of this law, a full-time employee is one who is scheduled to work at least forty (40) hours per week.

Part-time employees are also entitled to leave. Part-time employees with qualified reasons are entitled to up to the average number of hours they work over a typical two-week period. An employer may choose to give more paid sick leave via internal policies, but the cap for paid sick leave required under this law is eighty (80) hours, or ten (10) days.

Nowhere in Emergency Paid Sick Leave Act provisions is it stated that this leave is job-protected leave, but keep in mind that retaliation against any employee who utilizes paid sick leave under the FFCRA is prohibited. Additionally, employers must maintain health care coverage for the employee, as if they were still working.

Qualifying Reasons for Leave

There are six qualifying reasons for leave under this portion of the FFCRA:

1. The employee is subject to a Federal, State, or local quarantine or isolation order (including shelter in place orders) related to COVID-19;

2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;

3. The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;

4. The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

5. The employee is caring for their child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons; Or

6. The employee is experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services.

If any of these qualifying reasons is met, an employee may take leave offered under the Emergency Paid Sick Leave Act provisions.

But before we move on, two things to note here: (1) an employee is not entitled to paid sick leave under the FFCRA if they are ill and decide to self-quarantine without medical advice, even if they do have COVID-19 symptoms; and (2) an employee is not entitled to paid sick leave under the FFCRA if they become ill with an illness not related to COVID-19. However, in both of those instances, any employee may be able to utilize other existing forms of leave, such as leave provided for under California law.

Determining Rates of Pay under the Emergency Paid Sick Leave Act

Depending on the qualifying reason for the leave, an employee may be paid differently. That’s right, not all qualifying reasons were created equally. We’ve broken down the differences in the table below, for clarity!

[table id=1 /]

What is the Regular Rate of Pay?

You  may be wondering how to calculate the “regular rate of pay” for employees whose pay fluctuates. The Department of Labor anticipated that! Here’s what they have to say on the subject:

• The regular rate of pay used to calculate an employee’s paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave.

• If the employee has not worked for their current employer for six months, the regular rate used to calculate the employee’s paid leave is the average of their regular rate of pay for each week they have worked for their current employer.

• If they are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the Fair Labor Standards Act.

• An employer can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

• Overtime hours must be included in making the calculation.

If you’re unsure that you’ve correctly calculated your employees’ rate of pay, reach out to your attorney or CPA for guidance!

The Small Business Exemption

We briefly mentioned the small business exemption previously, but how does it work?

In order to receive an exemption from these expanded provisions, an employer with fewer than fifty (50) employees is exempt from providing leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the business. So let’s pause here and delve into the exemption a bit more.

In order to take advantage of this exemption by claiming that leave of an employee would jeopardize the business, an authorized officer of the business must determine that: (1) providing leave would result in the business’ “expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity”; (2) the absence of the employee requesting leave would entail “substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities”; OR (3) “There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee” requesting leave and “these labor or services are needed for the small business to operate at a minimal capacity.”

If the officer does not find any of these scenarios to be true, the business cannot be exempt and is required to abide by the expanded leave provisions in regard to leave for child care. An employer that seeks an exemption must document its determination and maintain a record; they should not send this information to the Department of Labor or any other agency.

To Wrap Up…

The Emergency Paid Sick Leave Act is just one component of the FFCRA, but it’s important to have a basic understanding of how it works. If you have any questions about this act or paid sick leave in general, send an email to bertie@inbetterwetrust.com to schedule a free 30-minute consultation, and we’ll see how we can help!