Business Guide to Coronavirus Stimulus Package: Paid Leave
Those of us who have employees find ourselves in a difficult situation. Of course, we want to do everything we can for our staff, including paying them when they have to be out for no fault of their own. But, how exactly is the company supposed to do that when business is basically shut down? This article focuses on the Employer’s obligations to provide paid leave to employees affected by Covid-19 crisis.
The paid leave requirements come under the Families First Coronavirus Response Act (FFCRA). There are two separate Acts that apply to all businesses (and non-profits) with fewer than 500 employees: the Emergency Paid Sick leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Request Consultation
Beware: Both the EPSLA and the EFMLEA are in effect from April 1, 2020 to December 31, 2020. And there are penalties for non-compliance.
Emergency Paid Sick leave Act (EPSLA)
What workers are eligible?
All W-2 employees, both full and part time, that have one of these six (6) situations:
- Is subject to a federal, state, or local quarantine or isolation order
- Has been advised by a healthcare provider to self-quarantine
- Is experiencing COVID-19 symptoms and is seeking medical diagnosis
Caretaker of affected person:
- Is caring for an individual subject to a quarantine/isolation order or medical advice to self-quarantine
- Is experiencing any other substantially-similar condition specified by the Secretary of Health & Human Services
- Is caring for a child whose school or care provider is closed or unavailable
How much time and pay?
Full-time employees get up to 80 hours, and part-time employees get up to two weeks. As for calculating the amount of pay the employee can get, it actually depends on the reason for the leave.
If the employee falls into the “Personally Affected” category above, then
- Pay at regular rate under the FSLLA (capped at $511/day and $5,110 in the aggregate over a 2-week period)
For those employees that fall into the “Caretaker” category above, then you have to break it down a little further:
- If the employee is caring for someone else who is subject to a quarantine or isolation order (or who has been advised to self-quarantine) OR who is subject to another substantially similar condition specified by the regulatory agencies, then
Pay at 2/3 their regular rate under the FLSA (capped at $200/day and $2,000 in aggregate over a 2-week period, up to 80 hours).
- If an employee is caring for a child because school or care is unavailable, then
Pay at 2/3 of regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period – two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).
And, as Employer, you cannot _
- offset this emergency sick leave with other sick leave already provided by employee contract or state law
- require your employee search for a replacement worker to cover the hours for which he/she is receiving paid sick leave
- require your employee use other paid sick leave prior to using this emergency paid sick leave.
The only carve-back is that employees cannot carry over the emergency paid sick leave to subsequent years.
An employee may choose to substitute accrued vacation leave, personal leave or medical/sick leave for the first two weeks of the leave. That is up to the employee, though. You, the employer, do not get to decide.
How can your company afford this?
There are two forms of aid coming your way. The first, and probably the most important, is the business loans under the Paycheck Protection Program and Economic Injury Disaster Loans. Read more here. Florida, and other states, will offer business loans as well, though with terms less favorable than the federal programs.
For some companies, though, these aids may not be enough. In that is your situation, then you will have to make your case for exemption.
Are there any Exemptions?
Yes. You will have to apply to the Department of Labor (DOL) and show your business has fewer than 50 employees and that compliance with the new provisions would jeopardize the viability of the business. Additionally, the Act does not apply to employees who are healthcare providers or first responders.
For many, the magic words are “jeopardize the viability of the business.” We will find out more about what exactly that means as the DOL starts making decisions.
Emergency Family and Medical Leave Expansion Act (EFMLEA)
Here the situation is a little different because we already have the Family and Medical Leave Act. The EFMLEA is just an amendment to the existing law. So, all the provisions of the Family and Medical Leave Act that do not conflict with the following continue to be in full effect.
Who is eligible?
- have been with the company for at least 30 days prior to the leave
- are unable to work (or telework) because they need to care for a minor child due to (i) closure of school or daycare center or (ii) care provider’s unavailability.
How much time and pay?
- Unpaid leave for the first 10 days, although employees can elect to use any other accrued paid leave, including personal, vacation or sick leave (including emergency paid sick leave).
- After 10 days the emergency leave becomes paid leave. The total leave can extend up to 12 weeks.
- Employees are required to be paid at a rate equal to at least 2/3 their regular rate of pay multiplied by the number of hours in their average work week, not to exceed $200 per day or $ 12,000 total (over a 12-week period).
- Employees who take emergency leave are entitled to job restoration rights unless the employer has fewer than 25 employees.
- Fewer than 25 employees – the employer meets its obligations if the previous position no longer exists due to the emergency and the employer makes reasonable efforts to return the employee to an equivalent position — including benefits, pay and other terms of employment — at some point during the one-year period beginning from when the employee’s leave ends or 12 weeks after the leave begins, whichever comes first.
WHAT ELSE SHOULD YOU KNOW?
This part applies to both Acts:
Employers must post a notice of FFCRA requirements in a conspicuous place at the job site.
Penalties and Enforcement
Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act 29 USC 216; 217.
- Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act.
- The Department will observe a temporary period of non-enforcement for the first 30 days after the Acts takes effect, so long as the employer has acted reasonably and in good faith.
- For purposes of non-enforcement, “good faith” means the violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Understanding the interplay between the available business loans, tax breaks, paid leave obligations and unemployment benefits is the whole game at this point. You have to weigh your options and make the best choices you can for your business.