Tonight, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). The passage of this law further complicates the web of paid leave laws that New York employers must navigate, given that, less than forty-eight hours ago, Governor Cuomo announced an agreement with legislators on a paid leave law at the state level.
Emergency Family and Medical Leave Expansion Act
Division C of the FFCRA is referred to as the Emergency Family and Medical Leave Expansion Act, and it amends the existing Family and Medical Leave Act of 1993 (commonly referred to as the FMLA).
The law now requires employers with less than 500 employees to provide twelve weeks of job-protected leave to any employee: (1) who has been on payroll for at least thirty calendar days; (2) is unable to work (or work remotely); (3) due to the need to care for a child under age 18 if school is closed or a childcare provider is unavailable; (4) as a result of an emergency declared by a federal, state or local government that is related to COVID-19.
The first ten days of leave are unpaid, although an employee may choose to use accrued paid time off during such time.
During the remaining period of leave, an employee must be paid two-thirds of his or her regular rate of pay for the number of hours the employee would usually be scheduled to work, up to $200 per day and $10,000 for the entire period of leave.
After the conclusion of emergency family leave, employers are generally obligated to restore an employee to his or her prior position or an equivalent position. However, employers with less than twenty-five employees are exempt from this requirement if: (1) the employee’s position is eliminated due to economic conditions or operational changes that affect employment and are caused by a public health emergency during the leave period; (2) the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay and benefits; and (3) where those reasonable efforts fail, the employer makes additional reasonable efforts to contact the employee if an equivalent position becomes available at any time within one year of the conclusion of leave.
An employer may choose to exempt any employee who is a healthcare provider (i.e., a licensed doctor of medicine or osteopathy, or another person determined by the Secretary of Labor to be capable of providing health care services) or an emergency responder from the law’s protections.
In anticipation of the financial hardship facing some employers, the FFCRA permits the Secretary of Labor to enact regulations exempting businesses with fewer than 50 employees from compliance with these emergency family leave requirements if such compliance would jeopardize the business’ ability to continue operating.
These protections will expire on December 31, 2020 unless they are renewed.
Emergency Paid Sick Leave
Division E of the FFCRA is referred to as the Emergency Paid Sick Leave Act. It requires employers with less than 500 employees to provide paid sick leave to any employee who is unable to work (or work remotely) when the employee: (1) is subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19; (3) has symptoms of COVID-19 and is seeking a diagnosis; (4) is caring for a person who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19; (5) is caring for a son or daughter if the child’s school or place of care has been closed, or his or her child care provider is unavailable, due to COVID-19 precautions; or (6) is experiencing any other substantially similar health condition as specified by the Secretary of Health and Human Services. This leave is available to all employees regardless of the duration of their employment.
Full-time employees must be provided with 80 hours of paid sick leave. Part-time employees must be provided with an amount of paid sick leave that is equal to the average number of hours that the employee works in a two-week period.
The amount to be paid depends on the reason for the employee’s leave. In the case of reasons (1), (2) and (3) above, the employee is to be paid at the regular rate of pay, except that paid sick time may not exceed $511 per day, and $5,110 in total. In the case of reasons (4), (5) and (6) above, the employee is paid at two-thirds of the regular rate of pay, except that paid sick time may not exceed $200 per day, and $2,000 in total.
Employers may not require employees to search or arrange for another employee to cover a missed shift, and may not take adverse action against employees who request or use paid sick leave. They also may not require employees to use other accrued paid time off before using the paid sick leave required by the FFCRA.
As in the case of paid family leave, employers may choose to exclude healthcare workers and emergency responders from these paid sick leave protections.
These protections will expire on December 31, 2020 unless they are renewed.
Employer Tax Relief
Division G of the FFCRA provides tax credits to employers who provide paid sick leave and/or paid emergency family leave benefits pursuant to the law.