This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!
COVID-19 has caused unprecedented illness across the country and has sparked Congress and federal agencies into swift action. In our last COVID-19 post, we discussed the Safer At Home Order that is in effect across the entire state. In this two post series, we will discuss what happens when employees get sick with, have to take care of a family member because of, or have to care for a child due to a closure because of COVID-19. The Families First Coronavirus Response Act went into effect April 1, 2020 and provides two distinct but related COVID-19 related paid leave provisions. This first post relates to both the Emergency Family and Medical Leave Expansion Act, which is an expansion of the Family Medical Leave Act (FMLA) medical leave and the Emergency Paid Sick Leave Act, which allows for sick leave outside of FMLA leave. Our second post of this series discusses the Department of Labor’s (DOL) guidance on the FFCRA. By way of these posts, we hope to inform employers and employees of the requirements and effects of these two paid leave provisions.
Generally, both provisions apply to “covered employers.” Covered employers are those that have 500 employees or less. There are potential exemptions to certain employers with fewer than 50 employees and certain reinstatement exemptions for employers with fewer than 25 employees. Employees are defined broadly under the FFCRA as all full time, part time, or contract employees of an employer.
Emergency Family and Medical Leave Expansion Act
Who does it apply to?
This section of the FFCRA loosens the requirements for obtaining FMLA leave if it is connected to the COVID-19 pandemic. This section provides leave if:
- The employee has been employed by the covered employer for at least 30 days; and
- The “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
There are some important things to note with these two requirements. First, the 30-day employment period is significantly lower than the required employment period under standard FMLA leave. Typically, employees are not eligible for FMLA leave until they have been with the employer for 12 months, who have worked at least 1250 hours in the last 12 months, and at a location where at least 50 employees are employed within 75 miles. The only time related requirement under the FFCRA is that the employee be employed for at least 30 days.
Next, note that this expanded FMLA leave only apples if the employee is unable to work or telework because the employee has to take care of their son or daughter because the son or daughter’s school has closed due to COVID-19. As of this post, public and private K-12 schools in Wisconsin are closed through the expiration of the Safer At Home Order.
Finally, Under the FFCRA, a public health emergency is defined as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”
What do eligible employees receive?
If an employee is unable to work because they are taking care of a child they are eligible for the following benefits:
- Up to 12 weeks leave, 10 weeks paid with the first two weeks unpaid at
- Not less than 2/3 of the employee’s regular rate of pay (as defined by the Fair Labor Standards Act (FLSA)) for the number of hours that the employee would otherwise be normally scheduled to work.
Under the FFCRA, the maximum amount of paid leave compensation an employee may receive is $200 per day or a total of $10,000 in the aggregate. It is important to note that the maximum number of weeks an employee can get is 12 weeks, however, if schools reopen or the employee is otherwise able to begin working again, the leave period will conclude.
Do I have to restore my employees who took leave?
The short answer: Probably. Section 104(a)(1) of the FMLA requires employees who have taken leave be restored to the same position they had prior to taking leave, or one that is “equivalent.” An equivalent position is “a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.” Implying that Section 104(a)(1) applies in all other circumstances, the FFCRA makes an exception for employers that employ fewer than 25 employees under certain circumstances.
If such an employer is able to show that:
- The employee took leave under the FFCRA;
- The employee’s position when leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that are caused by a public health emergency (COVID-19) during the period of leave;
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee had when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
- If the reasonable efforts above fail, the employer makes reasonable efforts during the 1-year contact period if an equivalent position becomes available.
The 1-year contact period begins at the earlier of the end of the public health emergency (COVID-19) or the date 12 weeks after the employee commenced the employee’s leave. It is important to note that the FFCRA is due to expire at the end of 2020, however, the contact period extends for one year regardless of when in the year it occurs.
Emergency Paid Sick Leave Act
The second leave provision that the FFCRA provides is sick leave completely separate from the leave provided above for COVID-19 related issues.
Who does this leave apply to?
The leave provided under this section is much broader and provides leave for any employee that is employed by a covered employer under six (not one) circumstances. The six available circumstances are:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2);
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Note that unlike the FMLA expansion, this leave does not have any minimum employment requirement. Any employee who meets any of the above six circumstances is eligible for the emergency paid sick leave.
What are these employees eligible for?
The FFCRA splits the compensation plan under the emergency paid sick leave depending on the reason for which the employee is taking the leave.
If the employee is taking leave for reasons (1), (2), or (3), the employee is eligible for 80 hours (two weeks) of paid sick time for full time employees or, for part time employees, a number of hours equal to the number of hours that such employee works on average over a 2-week period.
Paid sick time is defined by the FFCRA in the following ways:
- The rate is calculated based on the employee’s required compensation under sub (B) and the number of hours the employee would otherwise be normally scheduled to work except;
- Under reasons (1), (2), and (3) the employee is provided the employee’s regular rate of pay provided that it does not exceed $511 per day or $5110 in the aggregate; and
- Under reasons (4), (5), and (6), no less than two thirds of the employee’s regular rate of pay provided the amount does not exceed $200 per day or $2000 in the aggregate.
What do I have to do?
The FFCRA requires notice of these new employee rights. Think of the standard employment posters employers are required to have displayed. These posters are available through the Department of Labor (DOL) here.
Can I make an employee find a replacement prior to providing them leave?
No. This is expressly prohibited by the FFCRA.
Can I make an employee use that employee’s other available leave benefits first?
No. The FFCRA expressly prohibits employers from forcing employees to take other available, accrued leave prior to providing leave under the Act. However, the FFCRA also expressly allows employees to utilize other accrued leave prior to taking emergency paid sick leave, so they may end up with greater than 80 paid hours if they elect to do that.
How will I be repaid for providing leave?
The FFCRA states that employers will be provided tax credits for providing emergency paid sick leave or emergency family and medical leave. The Internal Revenue Service has issued guidance on what tax credits it will provide and if employers will be eligible for refunds.
How much notice do my employees need to provide?
The FFCRA states that an employee must provide the employer with a signed statement that supports the need for paid sick leave. That statement must include:
- The employee’s name;
- The date(s) for which leave is requested;
- The COVID-19 qualifying reason for leave; and
- A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
While this documentation is required, employers cannot request documentation beyond the above. If employers attempt to require additional documentation such as proof of diagnosis or proof of symptoms, the employer could risk running afoul of the Americans with Disabilities Act, which limits the amount of medical information employers can request or demand from employees.
Navigating the new legislation and all of the regulations and rules that are set to come with it from the DOL and IRS will be confusing and time-consuming, but the attorneys at Schober, Schober & Mitchell, S.C. are staying up to date. Follow our COVID-19 blog posts on www.wisconsinbusinesslawblog.com/ as we will continue to update as more guidance comes down from the federal and governments. Please contact our offices at 262-785-1800 or visit our website www.schoberlaw.com to talk to the business law attorneys regarding the new leave requirements or any of the new laws centered around COVID-19.