What is the Families First Coronavirus Response Act (“FFCRA”)?
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (H.R. 6201) (“FFCRA”) into law. For the employment law area, the law makes two significant changes: (1) paid sick leave and (2) emergency family leave.
Paid Sick Leave
What Employers Are Subject to the Paid Sick Leave Provisions?
The paid sick leave provisions apply to private sector employers with fewer than 500 employees. However, there is a potential small employer exemption.
How Much Paid Sick Leave Are Employees Entitled to?
Full-time employees are entitled to eighty hours of paid sick leave. Part-time employees are entitled to paid sick leave in an amount of the number of hours the employee works on average over two weeks.
Which Employees Are Eligible for Paid Sick Leave?
Paid sick leave is available for immediate use, no matter how long an employee has worked for the employer.
For What Reasons Can Employees Use the Paid Sick Leave?
Covered employers must provide an employee with paid sick leave if the employee cannot work or telework because of any of the following:
The employee is subject to a COVID-19 quarantine or isolation order by the federal, state, or local government;
The employee has been advised by a health care provider to self-quarantine because of concerns regarding COVID-19;
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
The employee is caring for someone who has been: (1) medically advised to self-quarantine due to COVID-19 or (2) is subject to a COVID-19 quarantine or isolation order by the government.
The employee is caring for their child because the child’s school is closed due to COVID-19 or the child care provider is unavailable due to COVID-19; or
The employee is experiencing any other substantially similar condition specified by the United States Secretary of Health and Human Services.
How Much Are Employees Paid for Their Paid Sick Leave Usage?
For employees taking paid sick leave for reasons one through three in the above list (i.e., due to the employee being affected), paid sick leave must be paid at the employee’s regular rate of pay or applicable minimum wage, whichever is greater. However, paid sick leave taken for these reasons is capped at $511 per day and $5,110 in total.
For employees taking paid sick leave for reasons four through six in the above list (i.e., due to taking care of another), paid sick leave must be paid at no less than 2/3 of the employee’s regular rate of pay or applicable minimum wage, whichever is greater. However, paid sick leave taken for these reasons is capped at $200 per day and $2,000 in total.
What is the Potential Small Employer Exemption?
The Department of Labor is authorized to create regulations allowing for employers with fewer than fifty employees to be exempt if providing the paid sick leave would jeopardize the employer’s viability. However, this exemption would only apply to employees using paid sick leave to take care of their child because the child’s school or childcare provider is closed and/or unavailable. Additionally, no such Department of Labor regulations are currently in effect.
When Do the Paid Sick Leave Provisions Take Effect and When Do They Expire?
The paid sick leave requirements take effect April 1, 2020 and expire on December 31, 2020.
Emergency Family Leave
What Employers Are Subject to the Emergency Family Leave Provisions?
Employers with fewer than 500 employees must provide emergency family leave. However, the Department of Labor has the authority to create regulations exempting employers with fewer than fifty employees if providing the leave would jeopardize the employer’s viability. However, no such Department of Labor regulations are currently in effect.
How Much Emergency Family Leave Are Employees Eligible for? How Do Employees Become Eligible?
Under emergency family leave, covered employers have to provide employees with up to twelve weeks of emergency family leave due to a qualifying need. A qualifying need means the employee is unable to work or telework due to needing to care for his or her child who is under eighteen years old and the child’s school or childcare provider is closed and/or unavailable due to COVID-19.
Which Employees Are Eligible for Emergency Family Leave?
Eligible employees are those that have been employed by the employer for at least thirty calendar days.
Is Emergency Family Leave Paid or Unpaid?
The first ten workdays of emergency family leave may consist of unpaid leave, but employees may use other paid leave during this time. After the initial ten days, the remaining emergency family leave must be paid. Emergency family leave must be paid at no less than 2/3 of the employee’s regular rate of pay and the number of hours the employee would normally be scheduled to work. However, paid emergency family leave is capped at $200 per day and $10,000 in total.
Are There Any Reinstatement Requirements for Emergency Family Leave?
Generally, employees on emergency family leave must be restored to their prior position. However, the reinstatement requirements do not apply to employers with fewer than twenty-five employees under certain conditions.
When Do the Emergency Family Leave Provisions Take Effect and When Do They Expire?
The emergency family leave requirements take effect on April 1, 2020 and expire on December 31, 2020.
Governor Newsom’s Stay at Home Order
On March 19, 2020, Governor Newsom issued an executive order requiring California residents to “stay at home” due to the COVID-19 outbreak.
What Employers May Continue Operating Under the Order?
Only employers operating in sectors designated as essential may continue operating and continue having their employees report to work. For example, employers in the food and agriculture, transportation, and healthcare sectors may continue operating, among many others.
To determine if an employer is allowed to continue operating, please consult the list of essential critical infrastructure workforce at: covid19.ca.gov/stay-home-except-for-essential-needs.
If an Employer May Continue Operating, Can It Require Its Employees to Report to Work?
Yes, if an employer may continue operating under the order, it can require its employees to report to work.
During the COVID-19 Outbreak, What Are the Options For Employers Regarding Their Employees?
Employers may: (1) continue paying their employees as normal; (2) institute furloughs; or (3) institute terminations.
What Happens Under the Continue Paying Employees Option?
If an employer continues operating, it must continue to pay its employees for their work. However, the employer may institute pay cuts or reduce hours to reduce costs unless there is a contract or collective bargaining agreement preventing pay cuts or a reduction in hours.
For employers no longer operating, they may also continue paying their employees as normal. Pay cuts are also an option. The statutory minimum wage and salary obligations remain in effect.
What Happens Under the Furlough Option?
If an employer furloughs its employees, the employees remain employees but temporarily perform no work for the employer. Furloughed employees do not receive pay because they are not performing any work. However, because the employees are not terminated, they may remain eligible for benefits, such as health insurance. Additionally, furloughed employees remain eligible for paid sick leave and emergency family leave under the FFCRA. At the end of the furlough, the employees return to work for the employer.
What Happens Under the Termination Option?
Under this option, employees are completely separated from the employer and therefore they are no longer eligible for benefits, such as health insurance. Further, former employees are ineligible for paid sick leave and emergency family leave under the FFCRA.
However, there are risks inherent with terminating employees. Therefore, employers deciding to terminate their employees must ensure they are only terminating employees for legitimate business reasons, such as because of economic uncertainty or reduced revenue. Terminating employees due to the COVID-19 outbreak or the required FFCRA leaves could lead to claims of wrongful termination, discrimination, or retaliation.
To minimize the risk inherent with termination, an option is to offer employees severance payments in return for a release of claims. If an employer pursues this route, it must ensure it is complying with certain laws, such as the Older Workers Benefit Protection Act.
If an Employer Decides to Terminate its Employees, What Must it Do?
Employees who are terminated should be provided with a termination letter stating the legitimate business reasons for the termination and that all wages have been paid. Terminated employees must be provided with all wages, including accrued vacation/PTO, immediately at the time of termination.
California law also requires employers to provide certain documents to terminated employees. These include: (1) a Notice to Employee as to Change in Relationship; (2) For Your Benefit: California’s Program for the Unemployed, DE 2320; and (3) COBRA and Cal-COBRA notices. For employers with twenty or more employees, a Health Insurance Premium Payment Program Notice, DHCS 9061, must also be provided. These documents are available online from California agencies and from your health insurance provider.
Are There Any Other Requirements For Furloughs or Terminations?
For employers proceeding with mass furloughs or terminations, they must comply with the federal and California WARN Acts if applicable. The federal WARN Act covers employers with 100 or more employees. The California WARN Act covers employers with 75 or more employees. These acts contain specific notification requirements that must be followed. Although the advance notification requirements have been relaxed and/or are inapplicable due to COVID-19, covered employers must still take certain steps before instituting mass furloughs or terminations.
Employee Exposure to COVID-19
What Can Employers Do If An Employee Is Exposed to or Contracts COVID-19?
Employees have various privacy rights and these rights are still in effect during the COVID-19 outbreak. Therefore, if an employer learns an employee was exposed to or has contracted COVID-19, the employer should not identify the affected employee. Identifying the affected employee, either specifically or through language allowing for identification, is a violation of privacy rights and could subject the employer to lawsuits.
Instead of identifying the employee, an employer may send a general notice to employees that an employee may have been exposed to COVID-19 or may have contracted COVID-19. The notice should not contain any specifics as to who was exposed, other particulars that might identify the employee, or that there was a definite exposure or contraction of COVID-19.