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Paid Employee Leave and the Families First Coronavirus Response Act

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The Families First Coronavirus Response Act (FFCRA), also referred to as H.R. 6201 and signed into law by President Donald Trump on March 18, 2020, has sent the business community scrambling to figure out what this means for them as they grapple with the workplace implications of COVID-19.

For small and medium-sized employers in Hawaii, the biggest, immediate impact of the Act—which takes effect on April 1, 2020—is the expansion of FMLA and mandatory paid sick leave provisions.

“FFCRA will provide much-needed relief to the thousands of workers affected by this global pandemic that has been devastating for businesses, their employees, and employees’ families,” says Michele Kauinui, Director of HR Services at simplicityHR by ALTRES.

“At the same time, employers are left with unanswered questions on various provisions of the Act, and it’s halted their ability to take full advantage of it as quickly as they would like.”

The huge bill also includes provisions for providing free coronavirus testing, enhanced unemployment insurance, and additional funding for food safety programs. Paid leave benefits are covered under two provisions of FFCRA: the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.

This article offers an overview of the new paid leave provisions, including which employers and employees are covered and the amount of pay.

VIDEO: Mandated Paid Leave is the Law, What Does it Mean for Hawaii Employers?

simplicityHR by ALTRES Director of Benefit Services Candice Wong explains what we know so far.

What are the paid leave provisions?

There are two paid leave acts under FFCRA that would provide financial relief for employees affected by the coronavirus pandemic.

Emergency Family and Medical Leave Expansion Act

This provision expands the Family and Medical Leave Act (FMLA) to allow employees who are unable to work (or telework) to take up to 12 weeks of leave if their minor child’s school or place of care is closed, or the childcare provider is unavailable, due to a public health emergency, like the coronavirus pandemic we are currently experiencing.

The Act further requires employers to pay employees who qualify for leave under this FMLA expansion. Any leave taken under this expansion counts towards the employee’s usual allotment of FMLA.

Emergency Paid Sick Leave Act

The paid sick leave provision requires covered employers to provide 80 hours of paid sick leave to full-time employees (or the equivalent two-week average for part-time employees) for reasons that include:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19, or caring for an individual who is.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19, or caring for an individual who has been advised as such.
  • The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  • The employee is caring for their minor child if the school or place of care has been closed, or the child care provider is unavailable, due to COVID–19 related reasons.
  • The employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Source: Paid Sick Leave Requirement, Section 5101.

Paid sick leave benefits must immediately be made available when FFCRA takes effect, on April 1, 2020.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses this paid sick leave benefit.

Which employers are covered?

Private employers with fewer than 500 employees (and certain public employers) are subject to the paid FMLA and paid sick leave provisions of H.R. 6201. Employers of employees who are healthcare providers or emergency responders may be excluded.

Private employers with fewer than 50 employees may be able to receive an exemption if the provisions would jeopardize the viability of the business, although the process for receiving such an exemption is not yet known

What is the amount of pay?

When leave is needed under the expanded FMLA provisions, the first 10 days of leave can be unpaid. An employee can elect to use any accrued vacation, sick leave, or PTO during this time. Any leave beyond 10 days must be paid at two-thirds the employee’s regular rate of pay with a cap of $200 per day ($10,000 total).

When leave is needed under the sick leave provisions, pay is at the employee’s regular rate. Pay is capped at $511 per day ($5,100 total) for leave needed for the employee’s own care and $200 per day ($2,000 total) for leave to care for someone else.

Which employees are eligible for paid leave?

To be eligible for the expanded FMLA provisions, employees must only be employed for at least 30 calendar days. The other usual FMLA requirements do not apply.

The paid sick leave benefits must be made available to all employees under covered employers, provided that their reason for leave meets one of the requirements listed above. Any unused emergency paid sick leave does not carry over to the following year, nor does it need to be paid out upon separation.

Do the leave provisions offer job protection?

Yes, job protection is offered under the FMLA Expansion. However, it does not apply to an employer with fewer than 25 employees, if the employee’s position no longer exists due to economic conditions (or other changes in the employers’ operations) caused by the public health emergency.

If the employer’s reasonable efforts to restore the employee’s position are unsuccessful, the employer must make efforts to contact and reinstate the employee if an equivalent position becomes available within one year.

Who is responsible for paying for the leave?

Employers are responsible for paying for leave benefits. However, they will be eligible for payroll tax credits. The Act takes effect on April 1, 2020 and sunsets on December 31, 2020. (See Division G—Tax Credits for Paid Sick and Paid Family and Medical Leave).

The safety and human resources experts at simplicityHR by ALTRES are working around the clock to support our clients and our community. If you have questions about how we can help, contact simplicityHR.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney or human resources adviser before acting upon any information in this article.

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