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FAMILIES FIRST CORONAVIRUS RESPONSE ACT (“FFCRA”)--PAID SICK AND FAMILY LEAVE: The FFCRA Provides For 2 Weeks Paid Sick Leave and 10 Weeks of Paid Family and Medical Leave to Eligible Employees

Author: Bruce S. Goodman, Esq.

  • Effective Date: April 1, 2020.
  • Covered Period: Applies to leave taken between April 1, 2020 and December 31, 2020.
  • Covered Employers: Private employers with fewer than 500 full-time and/or part-time employees. Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability if leave requirements would jeopardize the viability of the business as a going concern.
  • Eligible Employees: (i) all employees of Covered Employers are eligible for two weeks of paid sick time for the qualifying reasons discussed below, (ii) Employees employed for at least 30 days are eligible for an additional 10 weeks of paid family leave to care for a child under the qualifying reasons.
  • Paid Leave: Eligible Employees of Covered Employers are eligible for:
    • Up to 80 hours of paid sick leave at the employee's regular rate of pay if the employee is unable to work because the employee is quarantined pursuant to Federal, State or local government order or advice of a healthcare provider, and/or experiencing COVID-19 symptoms seeking a medical diagnosis, or
    • Up to 80 hours of paid sick leave at two-thirds of the employee's regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine pursuant to Federal, State or local government order or advice of a healthcare provider, or to care for a child under 18 years of age whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor, and
    • Up to an additional 10 weeks of paid expanded family and medical leave act at two-thirds of the employee's regular rate of pay where the employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
  • Employee Notice: Where leave is foreseeable, the employee should provide notice of leave to the employer if practicable. Following the first paid sick time workday, an employer may require employees to follow reasonable notice procedures to continue receiving paid sick time.
  • Qualifying Reasons: An Eligible Employee qualifies for paid sick time if the employee is unable to work or unable to telework because the employee:
    • (i) is subject to a Federal, State or local quarantine or isolation order related to COVID-19 (full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period);
    • (ii) has been advised by a healthcare provider to self-quarantine related to COVID-19 (full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period);
    • (iii) is experiencing COVID-19 symptoms and has a medical diagnosis (full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period);
    • (iv) is caring for an individual subject to a Federal, State or local quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine (full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period);
    • (v) is caring for a child whose school or place of care is closed (or the childcare provider is unavailable) for reasons related to COVID-19 (a full-time employee is eligible for up to 12 weeks of leave-two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period);
    • (vi) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the secretaries of Labor and Treasury (full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period).
  • Calculation of Pay: Paid sick time does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment. Overtime pay is included in the calculation.
    • Employees taking leave pursuant to (i) (ii) or (iii) are entitled to pay either at their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate over a two-week period;
    • Employees taking leave pursuant to (iv) or (vi) are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate over a two-week period;
    • Employees taking leave pursuant to (v) are entitled to pay at 2/3 their 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. An employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for the first 2 weeks of partial paid leave.
  • Employer Notice: The FFCRA requires employers to post in a conspicuous place on its premises where notices to employees are customarily posted a notice informing employees of the requirements described in the FFCRA.

    The Department of Labor has confirmed that if an employer's employees are working remotely, the employer may satisfy the notice requirement by mailing or emailing the notice to its employees, or posting the notice on an internal or external website containing employee information.

    The Department of Labor has promulgated a form notice that meets the requirements of the FFCRA. It can be found at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf