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GUIDANCE ON PAID LEAVE PROVISIONS OF FAMILIES FIRST CORONAVIRUS RESPONSE ACT

In the wake of the COVID-19 Virus, the federal government is passing many laws to combat the effects that the Virus is having on workers. On March 18, 2020, Congress recently passed the Families First Coronavirus Response Act (FFCRA), which in part provides paid leave under particular circumstances. The new benefits can be broken into two major new rights: the Emergency FMLA Expansion and the Emergency Paid Sick Leave provision. Both provisions ensure that you can utilize these benefits and your job will be protected absent a few exceptions. These benefits are effective April 2, 2020 and end December 31, 2020. In this blog, we will outline what employers are covered, what exactly the new benefits are, and in what situations they can be utilized.

Emergency Paid Sick Leave

The FFCRA provides Emergency Paid Sick Leave. This covers employers with less than 500 employees. It covers all employees. This benefit has no requirement that an employee must work at the employer for a certain amount of time. However, there is also potential exclusion for healthcare providers or emergency responders. In determining compensation, an employee can be covered for several reasons and those reasons are determinative of the compensation the employee will receive from their employer. This benefit provides 10 days of sick pay for full-time employees and prorated equivalent of two weeks leave for part-time employees. This paid sick leave is used prior and in addition to any employer-offered paid leave.

100% Pay Up to $511 a day. In order to receive a capped amount of $511 a day for a total of $5,110, the reason for taking the leave must fall into the following categories: (i) the employee must be quarantined due to a protective state or federal order, (ii) the employee is advised by a healthcare worker that they must stay quarantined, or (iii) the employee has symptoms of COIVID-19 and is seeking medical attention.

Two-Thirds Pay Up to $200 a day. An employee can receive $200 a day for a total of $2,000 if; (iv) the employee is caring for an individual under reasons (i) or (ii) above; (v) the employee is caring for a child whose school or child care provider is unavailable due to COVID-19; (vi) the employee is experiencing any other similar situation to those described above as specified by the Department of Health and Human Services.

This leave does not preempt existing state or local laws regulating paid sick leave requirements. It also does not carry over; instead,these benefits expire when the Act does on December 31, 2020. It also requires the employer to post a model notice requirement. Further, small businesses with less than 50 employees can also be excluded if granting the leave would jeopardize the viability of the business as an ongoing concern.

Emergency FMLA Expansion

The FFCRA expands FMLA. The Emergency FMLA Expansion provision applies to employers with less 500 employees. To be covered under this section, you must have been employed with your employer for the past 30 days to be eligible. An employee can take covered leave if they must care for a child under the age of 18 whose school or place of care has been closed or childcare provider is unavailable because of COVID-19. It provides for up to 10 weeks of leave. An employee may substitute any accrued vacation time, personal leave, or medical and/or sick leave for any unpaid leave under FMLA. An employer may exclude first responders and healthcare workers.

Two-Thirds Pay Up to $200 a Day for 10 Weeks. Under this provision an employer is not required to pay you for the first ten days, which may be covered under the Emergency Paid Sick Leave. After that, the employer is required to pay you two-thirds of you regular pay at the rate of $200 a day for a maximum total of $10,000 for the remaining ten weeks.

It also should be noted that if your employer has less than 25 employees the ability for you to get your job back may not be guaranteed. This can occur if your job no longer exists because of the economic downturn due to the public health emergency. If you find yourself in this position, it is important to know that your employer has to do two things before they can eliminate your job. One, your employer is required to make a reasonable effort to return you to an equivalent position. Second, the employer must make reasonable efforts to contact you if an equivalent position becomes available for one year.

Applicability to Employers Subject to a Multi-Employer Collective Bargaining Agreements. Under both provisions, an employer who is part of a multi-employer bargaining agreement and contributes to a fund that pays sick leave is excluded. Presumably, sick leave will be paid through the joint fund in that circumstance.

No Retaliation. The FFCRA also provides an anti-retaliation provision. Under this, an employer cannot terminate you for attempting to take the sick time or for filing a complaint or testifying in a proceeding relating to benefits and protections provided by the Act.

Payroll Tax Credit. There is a payroll tax credit for employers, which will reimburse employers 100% of the benefit, including healthcare continuation.

Health Plan Benefit Mandate. The second provision requires that all insured or self-funded plans cover COVID-19 testing and related services at 100%. This means you do not have to pay any deductibles or co-pays for COVID-19 testing.

If you have any questions please reach out to Miller Cohen by phone at 313-964-4454. Thank you and stay safe.

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