SICK LEAVE & FMLA UPDATE

SUMMARY OF SICK AND FMLA LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

Overview
  1. FFCRA effective on April 1, 2020 and sunsets on December 31, 2020
  2. Leave requirements apply to employer with less than 500 employees 
Two Weeks of Sick Leave (including childcare)
  1. Two weeks (total of 80 hours) of paid leave for full-time employees. Part-time employees entitled to hours normally worked in a two-week period
  2. All employees are eligible
  3. Applies to employees (a) unable to work because they are subject to government quarantine, health care provider quarantine, or isolation order; (b) experiencing COVID-19 symptoms; (c) caring for someone in quarantine; (d) who have to care for their child if school is closed or child care is unavailable
  4. Limited to $511 per day and $5,110 aggregate for the employee’s illness or quarantine, and $200 per day and $2,000 aggregate for any other qualifying reason
Emergency FMLA Leave
  1. First ten days is unpaid (employee may use sick leave at regular pay for employee illness or quarantine and 2/3 pay if caring for someone in quarantine or to care for their child)
  2. After ten days, if the employee is unable to work due to child’s school or childcare provider closure, employee is entitled to up to 10 additional weeks of leave at 2/3 of their regular pay. Pay is limited to $200 per day or $10,000 in aggregate
  3. Employee must have worked at least 30 days to be eligible 
Regular Rate of Pay for FFCRA purposes
  1. The regular rate of pay used to calculate paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which the leave is taken
  2. Any commissions normally paid should be incorporated into the pay calculation
  3. Overtime must be included if the employee would have been normally scheduled to work more than 40 hours in a week
Requirements For Usage of Leave
  1. Employees can be required to provide appropriate documentation to verify their need for leave
  2. Both paid sick and FMLA leave must be taken in full-day increments
  3. Paid sick and FMLA leave can only be used intermittently for child care reasons, and only with employer consent
  4. Employees may not “top off” any FFCRA payments with accrued PTO unless the employer agrees
  5. Employers cannot require employees to “top off” their FFCRA payments with accrued PTO unless the employer agrees

 EMPLOYEE RIGHTS POSTERS (Print and hang poster in place of business)


SMALL BUSINESS EXEMPTION UNDER THE FFCRA

A small business with fewer than 50 employees is exempt from certain paid sick leave and expanded family and medical leave requirements if providing employees sick leave would jeopardize the viability of the business as a going concern. This means that a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the business:
  • Employs fewer than 50 employees;
  • Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons; and
  • An authorized officer of the business has determined that at least one of the three conditions described below is satisfied.
  1. The provisions of paid sick leave or expanded family and medical leave would result in the small businesses’ expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capacities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and those labor services are needed for the small business to operate at a minimal capacity.
A small employer that claims the exemption, however must still comply with the sick leave provisions (80 hours) for the qualifying reasons of the employee’s own illness or to care for a family member.