As part of our efforts to keep our clients and readers informed with the most up to date information regarding the Covid pandemic, specifically as it relates to employment matters, there are key aspects to the Family First Coronavirus Response Act (FFCRA) that are particularly relevant now that many are being asked to return to work and the workplace. This legislation was signed into law this spring and is set to expire on December 31, 2020. Of course, the below legislation is subject to change.

This new law essentially provides vital resources to employees impacted by Covid and has two main components – paid sick leave and paid FMLA leave. It is expected that under these extreme circumstances, you might be concerned about childcare, getting sick or family members getting sick and how that might impact you if you are now being asked to return to work. Perhaps you have been asking yourself questions such as:

How can I return to work if I have young children to take care of who are not going to school every day, if at all?

Will I get paid if I get sick from Coronavirus and cannot work for an extended period of time?

What happens if I need to stay home to care for a family member who has Covid?

Do I have to use my accrued sick days in order to get paid if I need to stop working because of Covid?

Can I be terminated if I need to stop working because of Covid?

Is my job protected if I need to or want to stay home and not return to the workplace because of Covid?

Can my job be replaced by someone if I need to stop working because of Covid?

These are just some of the many questions that have been swirling around in our collective heads. Thankfully, the FFCRA provides some answers and clarity here. To summarize, FFCRA provides rights to employees essentially entitling them to paid sick leave and FMLA leave for Coronavirus related absences. It is crucial that employees understand their new rights under this law, and that employers, and their HR departments, understand their obligations under this law in order to ensure full compliance. These are some of the key provisions that govern your rights to paid sick leave and FMLA:

Paid Sick/Medical Leave:

  • If you are a full time employee, you are entitled to 80 hours of paid sick leave. If you are a part time employee, your leave is equivalent to your average hours worked in a two-week period.
  • If you are taking leave for your own sickness, you must be paid you usual wages. If you are taking time off to care for family members, you must be paid at 2/3 your usual pay.
  • Sick leave pay is capped at $522 per day and $5,110 in the aggregate for employees who are sick and capped at $200/$2000 for employees taking sick leave to care for family.
  • Wages paid under this act will not be subject to social security payroll tax.
  • Paid sick time will not carry over from year to year.
  • This new paid sick time leave will replace any existing paid sick leave policy.
  • Your employer cannot require you to use any other available paid leave before using the paid sick time.
  • Your employer cannot discriminate against you or retaliate against you for requesting or taking this leave. This means that you cannot be terminated because of requesting or taking this leave.
  • You are entitled to immediate sick leave. You are not subject to wait based on what is convenient or what might be a hardship for the employer.
  • This new law does NOT apply to certain health care and emergency responder employees

Emergency Family Leave:

  • You are entitled to 12 weeks of FMLA leave if you work in the private sector, have been on the job for at least 30 days, and are unable to work or telework because you have to care for a minor child if the child’s school or place of care has been closed, or if the child care provider of that child is unavailable due to a coronavirus emergency.
  • Private sector employers in the Health care or emergency responder sectors, with fewer than 500 employees may elect to exclude employees from the emergency family leave provisions.
  • The first 10 days of leave can be unpaid (you may opt to use accrued vacation days or other available paid leave for those days). For subsequent days of leave, you are entitled to receive a benefit from your employer equal to at least two-thirds of your normal pay rate. The paid leave is capped at $200 per day and $10,000 in the aggregate.
  • After your leave, you must be restored to your prior position (i.e. job protection); however, this requirement does not apply to employers with fewer than 25 employees if the position held by the employee on leave no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by the coronavirus pandemic, and the employer makes reasonable efforts to restore the employee to an equivalent position.
  • Wages paid under the emergency family leave provisions will not be subject to the social security payroll tax.

WHAT EMPLOYERS NEED TO KNOW:

  • You may be entitled to certain employer tax credits related to the benefits provided to your employees under this new law.
  • You must act swiftly to amend your policies and procedures to comply with this law.
  • You must train employees, particularly your HR department and/or Payroll department about the policies and procedures required under this law.
  • You may be liable for damages if you violate this law and breach your employees’ rights under this law.
  • You are required to post a notice containing information regarding this law. The Labor Department is quickly working to create a model notice for you to use.
  • This new law does not relieve you of your regular FMLA duties and laws not related to Coronavirus.

Feel free to contact this office if you are an employee or an employer who requires guidance or counsel regarding these new laws, or any legal employment matter you might be experiencing. We are drafting comprehensive, yet easy to follow return to work policies for our employer and company clients. Saluck, Halper & Lehrman are here to help and can be reached at 1-800-961-7884

This blog is informational in nature and is not a substitute for legal research, a consultation or counsel on your specific matter(s). Due to the dynamic nature of legal doctrines and statutes, what might be accurate one day may be inaccurate the next, particularly in the ever changing landscape of statutes and regulations related to the current pandemic.