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Saturday, April 11, 2020

Families First Coronavirus Response Act; Employer’s Responsibilities & Employee Benefits

Whether you are a business owner or an employee, it is essential that you are familiar with two federal laws during the current health crisis:  (i) Families First Coronavirus Response Act; and (ii)  Family Medical and Leave Act.  In short, the former guarantees certain employees to paid leave while the latter provides employees with job-protected unpaid leave.  In this blog post I will focus on the Families First Coronavirus Response Act and what it means to employers and employees in New York State. 

PAID LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

In response to the coronavirus outbreak, the Unites States Congress passed the Families First Coronavirus Response Act (“FFCRA”) to assist individuals who were directly impacted by the COVID-19 virus.  The goal of the FFCRA was twofold: (i) provide covered employees with a source of income if they are temporarily unable to work due to the COVID-19 outbreak; and (ii) protect the jobs of those very same individuals by prohibiting employers from firing or otherwise discriminating against them.

The FFCRA sets forth six (6) circumstances when an employer must provide some type of paid leave to its employees and specifies the benefits to be provided in each of those circumstances:

1.  Employees subject to Federal, State, or local quarantine or isolation order related to COVID-19

a)  Duration of Leave:  A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

b) Calculation of Pay:  Employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

2.  Individuals advised by a health care provider to self-quarantine related to COVID-19

a)  Duration of Leave:  A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

b) Calculation of Pay:  Employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

3.  Individuals experiencing COVID-19 symptoms and are seeking a medical diagnosis

a)  Duration of Leave:  A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

b) Calculation of Pay:  Employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

4.  Individuals who are caring for an individual subject to an order described in #1 above or self-quarantine as described in #2

a)  Duration of Leave:  A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

b)  Calculation of Pay:  Employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

5.  Individuals caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19

a) Duration of Leave:  A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

b)  Calculation of Pay:  For the first two weeks, employees shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate.  If the employee has been employed for thirty (30) or more days, they shall also be entitled to an additional ten (10) weeks of paid expanded family and medical leave at the same rate (e.g. 2/3 their regular rate or 2/3 the applicable minimum wage), up to $200 per day and $10,000 in the aggregate.

6.  Individuals experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury

a)  Duration of Leave:  A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

b) Calculation of Pay:   Employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

EMPLOYERS SUBJECT TO THE FFCRA

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers and private employers with fewer than 500 employees.  The statute, however, does exempt small businesses with fewer than fifty (50) employees from the requirement that they provide paid leave to employees due to school closings or child care unavailability if it “would jeopardize the viability of the business as a going concern.”  The law, however, fails to elaborate or otherwise provide any insight as to how a business can determine if it falls within this exemption.  How a business can determine if it falls within this exemption will be discussed in a future blog post. 

EMPLOYER NOTICE REQUIREMENTS

Employers who fall within the FFCRA are mandated to provide notice to their employees of their rights under the statute.  Said notice must be posted in “conspicuous places on the premises of the employer where notices to employees are customarily posted….” The United States Department of Labor has issued a model notice which can be found on its website (https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf).  Notwithstanding the foregoing, with a majority of non-essential employees working from home I would also recommend that all employers forward a copy of the notice to their employees either through e-mail and/or first class mail.

PROTECTING EMPLOYEE JOBS

In addition to providing paid leave, the FFCRA also attempts to protect the jobs of employees by prohibiting employers from discharging, disciplining, or otherwise discriminating against any employee who takes paid leave under the FFCRA and files a complaint or institutes a proceeding under or related to the statute.  It is therefore imperative that all businesses have established procedures in place for employees who seek leave under the FFCRA in order to prevent an employee from claiming that they were treated differently or unfairly.

ENFORCEMENT OF THE FFCRA

In order to ensure compliance with the FFCRA, the statute has an enforcement provision.  In sum, any employer who fails to provide a qualified employee with paid sick time or unlawfully terminates an employee shall be subject to the penalties and enforcement provisions set forth in §§16-17 of the Fair Labor Standards Act (which is quite serious in nature).  Moreover, any employer who fails to provide an employee with the additional ten (10) weeks of paid leave to care for a child whose school or place of care is closed is subject to the enforcement provisions of the Family and Medical Leave Act.  Notwithstanding the foregoing, the Department of Labor is providing a temporary period of non-enforcement thru April 18th so long as the employer has acted in good faith to comply with the law.  According to the Department of Labor, “good faith” will be deemed to exist when: (i) the employer’s violations are not willful; (ii) the violations are remedied and the employee is made whole as soon as practical; and (iii) the Department receives a written commitment from the employer to comply with the FFCRA in the future.

LEGAL ASSISTANCE WITH COMPLIANCE &VIOLATIONS

 Please keep in mind that the FFCRA is a complex piece of legislation and the above is just a summary of some of its key provisions.  Our office is here to assist businesses with making sure that their current practices and procedures are in compliance with all the requirements of the FFCRA and other Federal and State laws.  We are also here to help any individual whose employer has unlawfully denied their request for leave or otherwise believe that their employer is intentionally failing to comply with the mandates of the law.






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