Employers need to buckle-up. New laws are coming fast and furious, and the ride to implementation may be bumpy. On March 18, President Donald Trump signed the Families First Coronavirus Response Act. Thereafter, on March 24, the U.S. Department of Labor’s Wage and Hour Division published its initial guidance, and the next day the Department of Labor issued the mandatory posting requirement. More new federal legislation is expected any moment. The following are highlights employers need to know now.
Under the most recent WHD guidance, the effective date of the FFCRA will be April 1. The law will apply to leave taken between April 1 and Dec. 31. If an employer grants paid sick leave prior to April 1, it does not reduce the amount of paid sick leave otherwise available under the FFCRA.
500-employee threshold for private employers
The FFCRA’s leave provisions only apply to employers with fewer than 500 employees. Certain public employers are also covered, regardless of size. Temporary employees, jointly employed by the employer and another employer, and day laborers supplied by a temporary agency count for purposes of calculating the number of employees. Independent contractors do not count.
Emergency Family and Medical Leave Act extension
One key component of the FFCRA mandates that eligible employees may take up to 12 weeks of job protected leave if the employee is unable to work because the employee is required to care for their son or daughter younger than 18 years old where the place of care has been closed or the childcare provider is unavailable.
Employer’s obligation to pay the employee while on emergency FMLA
• Weeks 1 and 2 are unpaid, unless the employee elects to substitute emergency sick time or any available PTO, accrued sick or vacation time already provided by the employer.
• Up to an additional 10 weeks for weeks 3 through 12, employees are to be paid at two-thirds the regular rate of pay up to $200 per day.
• Employee must have been employed for 30 calendar days prior to the day they begin leave.
Emergency paid sick leave
The emergency paid sick leave component of the FFCRA applies to all public employers and private employers with fewer than 500 employees.
Who qualifies for emergency paid sick leave?
An employee may qualify for any one of the following six reasons:
• The employee is subject to federal, state or local quarantine or isolation order related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to a COVID-19 concern.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for an individual subject to a federal, state or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to COVID-19 concerns.
• The employee is caring for a son or daughter younger than 18 years old when the school or childcare provider has closed or ceased operations due to COVID-19 precautions.
• The employee is experiencing any other substantially similar conditions specified by the secretary of health.
What is an employer’s obligation to pay emergency sick leave?
• Full-time employees are entitled to up to two weeks or 80 hours.
• Part-time employees are entitled to the equal number of hours they work on average over a two-week period.
• Employees are to be paid at their regular rate of pay up to $511 per day.
Business viability exception
If the employer has fewer than 50 employees and implementation of the emergency FMLA will put the viability of the business at risk, the employer may apply for an exemption. Guidance on the exemption requirements is expected to be released soon.
Janet Strevel Hayes, a shareholder with Lewis Thomason, is an advocate for employers and businesses across Tennessee.