My last post mainly concerned an employer’s obligation under the Fair Labor Standards Act (“FLSA”) to pay their employees when they can’t come to work or the office is closed due to the Corona Virus outbreak. At the end, there was a brief explanation of the requirements imposed by a recently enacted federal law that has since taken effect on April 1, 2020. Since that time, the U.S. Department of Labor (“USDOL”) has issued more guidance (the FAQ document is particularly helpful) on the scope of that law, which guidance contradicts some of the statements I made about it in my post.
To begin with, the correct name of the new federal law is the Families First Coronavirus Response Act (“FFCRA”). It has two components: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The incorrect statements made in my last post concern the scope of the EFMLEA.
EFMLEA ONLY APPLIES TO EMPOLYEE TAKING CARE OF CHILD
My last post gave the impression the provisions of the EFMLEA applied to all employees who are unable to work due to reasons related to the Corona Virus outbreak. That is not the case. Instead, the provisions of that Act apply only to employees who are unable to work due to having to care for their son or daughter whose school or place of care is closed, or child care provider is unavailable, due to Corona Virus related reasons (e.g., order mandating closure of schools, place of care closes or child care provider terminates services due to virus outbreak). An employee who is entitled to paid sick leave under the EPSLA for reasons other than having to care for their son or daughter is not entitled to continued payment under the EFMLEA. Such an employee’s right to receive paid sick leave under the FFCRA terminates after they have been paid for 80 hours, if a full-time employee, or the time they would have worked during a two week period if a part-time employee.
In addition to limited eligibility requirements under the EFMLEA, if the employee could be teleworking while taking care of their son or daughter, the employee is not entitled to be paid anything under the EFMLEA. Instead, the employee would be paid their normal compensation for the time they spend teleworking, even if such compensation would be less than what they would otherwise be entitled to receive under the EFMLEA. If the employee is able but refuses to perform teleworking activities, they would not be entitled to be paid anything under the EFMLEA or the FLSA (if a nonexempt employee or if an exempt employee for any week in which they performed no work).
An employer is entitled to ask an employee for documentation to support their right to paid leave under the EFMLEA. Such documentation should be requested by the employer as it will need to provide proof it paid the employee for a permitted reason if it wants to claim a credit for the payments made against its FICA taxes. Please note the USDOL has interpreted “child care provider” very broadly to include “individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors.”
EPSLA CAPS AND OTHER REQUIREMENTS
An employee is entitled to paid sick leave under the EPSLA if any one of six conditions applies. If the employee (1) is subject to a government mandated quarantine due to their having or possibly having the Corona Virus, (2) has been advised by a health care provider to self-quarantine for the same reason, or (3) is experiencing symptoms of the Corona Virus and is seeking a medical diagnosis of their condition, the employee is entitled to be paid 100% of their normal compensation for the 80 hour or two week time period described above. Such compensation is capped at $511 a day, or a total of $5,110.00.
If the employee is (4) caring for an individual who satisfies 1 or 2 above, (5) is caring for a child (not necessarily a son or daughter) under 18 years old for a reason specified in the EFMLEA, or (6) is experiencing any other condition that is substantially similar to the Corona Virus specified by the Secretary of Health and Human Services (no such conditions have been specified as yet), the employee is entitled to receive two-thirds of their normal compensation for the same 80 hour or two week period. Paid sick leave for these reasons is capped at $200 a day, or a total of $2,000.00.
An employer cannot require an employee to use any accrued vacation or other paid time off if they qualify to receive paid sick leave under the EPSLA. If the reason for an employee’s entitlement to paid sick leave goes away before the expiration of the 80 hour or two week period, the employee retains the right to receive the remainder of such pay if they later become eligible for another reason; but only if this happens before December 31, 2020.
As with the EFMLEA, if the employee is able to telework while under quarantine or experiencing any of the other above conditions, they are not entitled to receive paid sick leave under the EPSLA. They are entitled only to their normal compensation for the time spent teleworking.
SMALL EMPLOYER EXEMPTION
Employers with less than 50 employees may apply for an exemption from some, but not all, of the requirements of the FFCRA. The exemption is limited to providing paid sick leave for the reasons specified in the EFMLEA. This exemption applies to paid sick leave under both that law and the EPSLA. All employers are required to provide paid sick leave under the EPSLA to any employee who satisfies one of the other five conditions described above.
The USDOL has specified three reasons for which a small employer can claim the above exemption. They essentially involve the inability or likely inability of the employer to continue in business if it is required to provide paid sick leave under the EFMLEA. See questions 58 and 59 of the USDOL FAQ document for more detail.