Understanding the Families First Coronavirus Response Act (FFCRA)
The Families First Coronavirus Response Act (FFCRA) was signed into law to provide paid Emergency Paid Sick Leave (EPSLA) and paid Emergency Family and Medical Leave (EFMLA) to employees affected by COVID-19. The Act covers private employers with fewer than 500 employees, as well as public agencies, and includes provisions for posting notices, recordkeeping requirements, and specific qualifying reasons for Emergency Paid Sick Leave. Employers must comply with the Act's provisions, effective from April 2, 2020.
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Employment Law Update in Employment Law Update in Response to COVID Response to COVID- -19 19 Jennifer Lorenz, Esq. Dietze & Davis, P.C.
The President signed into law the Families First Coronavirus Response Act, H.R. 6201 (FFCRA or Act) on Wednesday evening March 18, 2020 This new Act provides for the paid Emergency Paid Sick Leave Act ( EPSLA ) and paid Emergency Family and Medical Leave Act ( EFMLA ) to employees working for private-sector employers with fewer than 500 employees or covered public agencies regardless of size. The Act will take effect April 2, 2020 Section 826 addresses the FFCRA requirement that employers post and keep posted a notice of the law s requirements. The Department of Labor has created employment posters addressing FFCRA: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non- Federal.pdf https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.p df https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions The Department of Labor s Wage and Hour Division will administer and enforce the new Act s paid leave requirements. https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
On April 6, 2020 the Department of Labor Published a Temporary Rule. 29 CFR Part 826: Paid Leave Under the Families First Coronavirus Response Act -Wage and Hour Division https://www.federalregister.gov/documents/2020/04/ 06/2020-07237/paid-leave-under-the-families-first- coronavirus-response-act
Recordkeeping. Pursuant to Section 826.140 an employer is required to retain all documentation provided pursuant to Section 826.100 for four years, regardless of whether leave was granted or denied.
Emergency Paid Sick Leave Act Covered Employers. The Act covers private employers with fewer than 500 employees, and public agencies regardless of size. Availability. Emergency paid Sick Leave is immediately available by all employees, full-time and part-time, regardless of how long the employee has worked for the employer. Amount of Leave. Full-Time - Covered employers are required to provide full-time employees with 80 hours of Emergency Paid Sick Leave. Part-time- Covered employers are required to provide part-time employees with Emergency Paid Sick Leave at their regular rate of pay for the average number of hours that such part-time employees work in a two- week period.
Emergency Paid Sick Leave Qualifying Reasons for Use Employees who are unable to work or telework are eligible for Emergency Paid Sick Leave for the following reasons: To comply with a federal, state, or local quarantine or isolation order related to COVID- 19; 1. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 2. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 3. To care for an individual who is subject to an order as described in (1) above or has been advised as described in (2) above; 4. To care for the employee s son or daughter if a school or place of care is closed, or the childcare provider is unavailable, due to COVID-19 precautions; or 5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor. 6.
Notice and Documentation. An employee must provide their employer documentation in support of EPSLA or EFMLA.
Emergency Paid Sick Leave: Qualified Reasons for Use Specific Document Requirements Section 1 -An employee requesting paid Sick Leave under Section 1 of the Qualified Reasons for Use must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. Section 2 -An employee requesting paid Sick Leave under Section 2 Qualified Reasons for Use must provide the name of the health care provider who advised him or her to self-quarantine for COVID 19 related reasons. Section 4 -An employee requesting paid Sick Leave under Section 4 Qualified Reasons for Use, to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. Section 5 -An employee requesting to take paid Sick Leave under Section 5 Qualified Reasons for Use, or under EFMLA to care for his or her child must provide the following information: (1) The name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID 19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
Calculation of Paid Leave. The amount an employer is required to pay is capped at $511 per day of paid sick leave taken and $5,110 in total per covered employee for all paid sick leave pay. Where an employee is taking paid sick leave at two-thirds pay, the amount of pay is subject to a lower cap of $200 per day of leave and $2,000 in total per covered employee for all paid sick leave that is paid at two-thirds pay. No Carryover. Employer Policies and Other Mandated Leave. The Act does not diminish an employee s rights or benefits under state or local laws or an existing employer policy. Termination of Leave. The Emergency Paid Sick Leave terminates on the employee s next scheduled work shift immediately following the termination of the need for such leave for a qualifying COVID-19 reason.
Emergency FMLA Under the existing law employees are eligible to take Family and Medical Leave Act (FMLA) leave if they work for a covered employer and: Have worked for their employer for at least 12 months; Have at least 1,250 hours of service over the previous 12 months; and Work at a location where at least 50 employees are employed by the employer within 75 miles.
The Emergency FMLA amends the existing FMLA : Covered Employers. Covered Employees. Leave Usage. Relationship to Paid Leave. The first 10 days of EFMLA leave will be unpaid. Employees may elect, but are not required, to substitute any accrued vacation leave, personal leave, or medical or EPSLA for unpaid leave, including Emergency Paid Sick Leave pursuant to the FFCRA.
Paid Leave Amount.After the first 10 days of EFMLA leave, eligible employees will be entitled to not less than two-thirds of their regular rate of pay for the number of hours that the employee would normally be scheduled to work, capped at $200/day ($10,000 in the aggregate). Documentation.
Return to Work Section 826.130 addresses an employee s right to return to work after taking paid leave under the EPSLA or the EFMLA. The new statute does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer has the same burden of proof to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
Small Businesses with Fewer than 25 Employees The EFMLA amendments to the FMLA specify that the FMLA s restoration provision does not apply to an employer who has fewer than twenty- five employees if all four of the following conditions are met: (a) The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose childcare provider was unavailable; (b) The employee s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID 19 related reasons) during the period of the employee s leave; (c) The employer made reasonable efforts to restore the employee to the same or an equivalent position; and (d) If the employer s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available.
Intermittent Leave Under the EPSLA and EFMLA One basic condition applies to all employees who seek to take their paid EPSLA or EFMLA intermittently the employee and their employer must agree. Absent agreement, no leave under the FFCRA may be taken intermittently. When an employer and employee agree that the employee may take paid EPSLA or EFMLA intermittently, they also must agree on the increments of time in which leave may be taken.
HOWEVER, employees who report to an employers worksite are PROHIBITED from taking paid EPSLA intermittently, regardless of any agreement between the employer and employee to the contrary, if the leave is taken because 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 related to COVID 19; (3) Is experiencing symptoms of COVID 19 and is taking leave to obtain a medical diagnosis; (4) Is caring for an individual who either is subject to a quarantine or isolation order related to COVID 19 or has been advised by a health care provider to self- quarantine due to concerns related to COVID 19; or (5) Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Interactions Between EPSLA and EFMLA Section 826.60 sets forth how the requirements of the EFMLA and the EPSLA interact when an employee qualifies for both types of leave. Generally, when an employee qualifies for leave under both Acts, an employee may first use the two weeks of paid leave provided by the EPSLA. This use runs concurrent with the first two weeks of unpaid leave under the EFMLA. Any remaining leave taken for this purpose is paid under the EFMLA.
Possible Exemptions for Small Businesses The DOL believes it is necessary to set forth objective criteria for when a small business with fewer than 50 employees can deny an employee paid EPSLA or EFMLA to care for the employee s son or daughter whose school or place of care is closed, or child care provider is unavailable, for COVID 19 related reasons. Section 826.40(b)(1) explains that a small employer is exempt from the requirement to provide such leave under EPSLA or EFMLA when: (1) Such leave would cause the small employer s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
Effective Dates Both the EPSLA and EFMLA take effect on April 2, 2020 and sunset on December 31, 2020.
Enforcement The DOL will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days or until April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. . For purposes of this non-enforcement position, an employer may be found to act reasonably and in good faith when all of the following facts are present: The employer remedies any violations, including by making all affected employees whole as soon as practicable. The violations of the Act were not willful based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited ). The DOL receives a written commitment from the employer to comply with the Act in the future. https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1
Unemployment Insurance Benefits The CARES Act includes: Expanded Unemployment Insurance (UI) for workers, including a $600 per week increase in benefits for up to four months. Federal funding of UI benefits provided to those not usually eligible for UI, such as the self-employed, independent contractors, and those with limited work history. The Federal government is incentivizing states to repeal any waiting week provisions that prevent unemployed workers from getting benefits as soon as they are laid off by fully funding the first week of UI for states that suspend such waiting periods. The Federal government will fund an additional 13 weeks of unemployment benefits through December 31, 2020 after workers have run out of state unemployment benefits. https://taxfoundation.org/cares-act-senate-coronavirus-bill-economic-relief-plan/
Colorado Executive Order Expediting Unemployment Benefits Extend the maximum duration of unemployment benefits from 26 weeks to 39 weeks for each person. Waive the requirement that people continue searching for work while collecting benefits and waive C.R.S. 8-73-107(1)(g)(I). Eliminate the one-week waiting period for people to start accruing benefits, C.R.S. 8- 73-107(1)(d). Waive C.R.S. 8-73-108(e) requirement that UI benefits are charged to employer experience rating accounts, and charge benefits for claims resulting from the impact of COVID-19 to the fund rather than to employer experience rating accounts. Waive C.R.S. 8-74-102(1) requirement that CDOL staff notify other interested parties upon receipt of a UI benefit claim and that such parties be afforded twelve (12) calendar days to respond to said claim before CDOL issues a decision to award benefits, and to prioritize the UI benefit payments resulting from the impacts of COVID-19 before providing notification of interested parties and additional fact finding as necessary to ensure prompt payment of benefits. Expedite UI benefits claim processing and distribution of payments to ensure displaced workers as a result of the impacts of COVID-19 will begin receiving such payments within ten (10) days of the receipt of filing their completed applications to the extent practicable. https://drive.google.com/file/d/1mMCRLb6PxMPI680_THFn4nqLGAty1jq9/view
Working While Collecting Unemployment An employee may work part-time (less than 32 hours per week) and collect unemployment. If the employee s wages equal or exceed their weekly benefit amount (WBA) the employee may not receive any unemployment payment that week. https://www.colorado.gov/pacific/cdle/working-collecting
The Colorado Work-Share Program Colorado s Work-Share Program provides an alternative to laying off employees by allowing them to keep working, but with fewer hours. While an employee is working fewer hours, he or she may be eligible to collect part of his or her regular unemployment benefits.
Colorados Work-Share Program Requirements and qualifications for employers: Employer must have reduced the normal weekly work hours by at least 10 percent, but by no more than 40 percent. The reduction must affect at least two out of all employees in the business, or a minimum of two employees in a certain unit. Requirements and qualifications for employees: Have earned enough money to be able to collect unemployment benefits. Not have run out of money on an unemployment claim that has not yet reached its end date. Sign up for unemployment once your hours are reduced. Meet all the requirements of the law for us to pay unemployment benefits. https://www.colorado.gov/pacific/sites/default/files/WorkShareInfoEmployers_0.pd f
Additional helpful links and Considerations https://www.colorado.gov/pacific/cdle/all-news/16361 https://www.washingtonpost.com/business/2020/04/03/unemployed-coronavirus-faq/?arc404=true https://drive.google.com/file/d/1GjiohfHn3BP10UxifTQLfgfdw0Twrut_/view https://www.congress.gov/bill/116th-congress/house-bill/6201 https://www.colorado.gov/cdle https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.osha.gov/Publications/OSHA3990.pdf https://www.colorado.gov/pacific/cdle/layoffassistance http://www.cobar.org/For-Members/COVID-19-Resources
Please Stay Healthy and Safe Thank You! http://dietzedavis.com/jennifer-lorenz Jennifer Lorenz, Esq. Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 (303) 447-1375
