GKWW is keeping you up-to-date on the latest legal concerns pertaining to the COVID-19 pandemic. To read our most recent newsletters and subscribe, click here.
What new laws should I be aware of?
There are two major laws that we are following. First, the Families First Coronavirus Response Act (“FFCRA”) requires most employers to give each employee at least 2 weeks of paid sick leave and/or paid FMLA leave for certain coronavirus-related absences. The FFCRA also gives employers immediately usable tax credits to reimburse for any wages paid to employees taking leave under the Act. This Act will go into effect on April 1, 2020.
Second, the Senate approved a stimulus bill late last night to help both employers and individuals manage finances in the weeks and months ahead.
Does the FFCRA apply to me?
Maybe. Generally speaking, the law applies to all companies with fewer than 500 employees, though we expect exemptions for some small businesses with fewer than 50 employees who can show the law would jeopardize the viability of the companies. We’re waiting for more details on what would be required to be held exempt.
What are the reasons an employee can take leave?
FFCRA creates a new type of FMLA leave. Ordinarily, employees can take unpaid FMLA leave for 12 weeks due to their own serious medical problem or to care for a family member’s serious medical problem. The FFCRA now allows employees to take partially paid FMLA leave if they are not able to work or telework because their minor child cannot attend school or go to childcare because of coronavirus-related closures. Employees who qualify for leave only under existing FMLA criteria are not eligible for partially paid leave.
For paid sick leave, employees can qualify based on any of these reasons:
- (1) the employee is subject to a federal, state, or local quarantine or isolation order;
- (2) a health care provider has advised the employee to self-quarantine;
- (3) the employee is experiencing COVID–19 symptoms and is seeking diagnosis;
- (4) the employee is caring for someone else subject to (1) or (2); or
- (5) the employee is caring for a child whose school or child-care services are unavailable.
More reasons may be added in the future.
How much do employees make while on leave?
Employee who takes FFCRA paid sick leave for either of the first two reasons above are paid their full regular pay; employees who take sick leave for the other reasons above are paid at 2/3 of their regular pay.
Employees eligible under the FFCRA to take FMLA may take up to 12 weeks of leave; the first two weeks of leave are unpaid after which the employee will earn 2/3 of their regular pay for the remaining 10 weeks. Those employees can choose to use either paid sick leave or other existing leave for the first 2 weeks and are guaranteed job protection when they return to work. Employers with fewer than 25 employees may be exempt from the job protection requirement where they meet certain conditions.
Under either form of leave, pay is capped at $511.00 per day for employees earning full pay and $200.00 per day for employees earning 2/3 pay. Employers may choose to ignore these caps but cannot claim tax credits for any amounts they pay employees beyond these limits.
Can I require employees to use FFCRA leave before using existing leave?
No. Under both types of FFCRA leave, the employee may choose the order they use the leave they have available.
When will I be reimbursed for wages paid to people on leave?
Almost immediately, according to the IRS. While the FFCRA’s tax credits for employers are applied quarterly, the IRS just announced that employers will be able to hold on to money they would otherwise deposit for certain federal taxes up to the amount an employer has to pay under the Act.
While the final rules on this won’t be released until next week, the IRS has said it is taking these steps to make sure you don’t have to go out of pocket to cover FFCRA leave for your employees.
What proof can I ask for to make sure employees qualify for leave?
The Act doesn’t give any direction for this, but we suggest you follow your existing sick-leave and/or family medical leave documentation policies or practices and your common sense. You will want to counsel your lawyer about how this should be handled.
What if I need to fire or layoff someone who has claimed sick leave or FMLA leave under the FFCRA?
You cannot retaliate, harass, and/or discriminate against employees who use or seek FFCRA leave. You should seek out specific guidance from your lawyer before you terminate any such employees.
Do I have to pay employees for leave taken before April 1, 2020?
Only if your existing sick leave or family medical leave policies give employees paid leave. Employees cannot take leave under the FFCRA until April 1, 2020.
Can I offer bonuses to people otherwise eligible for leave to incentivize them to work instead?
This is dangerous territory so you should proceed with caution. While your offer may be in good faith, it is important that you don’t give your employees the impression that you’re interfering with them taking leave which is prohibited under FMLA. Please consult a lawyer before proceeding with bonuses or incentives like this.
Are these the only types of leave available to employees who are sick or who need to care for family?
No. Unpaid FMLA leave may also be available for your employees depending on whether your business and the employee meet certain requirements.
Keep an eye out for future GKWW Newsletters for a more thorough discussion of unpaid FMLA leave requirements.