Illness and changed circumstances due to the COVID-19 pandemic have affected employees’ abilities to work their regular hours. To assist those employees, the federal government passed the Families First Coronavirus Response Act, or FFCRA, which is effective April 1-December 31, 2020. 

This legislation requires employers with less than 500 employees to provide paid leave to employees directly impacted by the coronavirus for certain qualifying reasons. Any qualifying leave provided to employees will be reimbursed immediately via tax credits from payroll taxes.  On Thursday, April 2nd, the Louisiana Technology Park hosted a virtual Tech Park Academy featuring Jennifer Anderson, a labor and employment law shareholder at Baker Donelson, to help small businesses understand the new law.

Compliance with the FFCRA is critical for protecting your small business, but it’s also essential for maintaining the health and safety of both your employees and the public. Here’s what you need to know.

Understanding the Expanded FMLA

Under normal circumstances, organizations with less than 50 employees are not subject to the FMLA. However, the FFCRA has expanded the FMLA to cover a public health emergency (specifically COVID-19). Under these emergency circumstances, organizations with less than 500 employees are subject to the expanded act. Normally, the FMLA offers 12 weeks of unpaid leave, but the expanded FMLA offers 12 weeks of leave, 10 of which are paid at ⅔ of the employee’s regular rate (capped at $200 per day or $10,000 in the aggregate).

The expanded FMLA covers employees who cannot work or telework because they are caring for children under 18 (or adult children with disabilities who are incapable of self-care) whose school or care center has been closed, or whose child care provider is unavailable, due to COVID-19. The employee must have worked at your organization for 30 days prior to the date of leave requested. When requesting paid leave, the employee must provide the child’s name and the name of the school or care facility and demonstrate that there is not another suitable child care provider. 

Employees may use their leave intermittently if the employer approves of the arrangement. When returning from their leave, employees must be restored to an equivalent position, with the exception of organizations with less than 25 employees where the position no longer exists upon the employee’s return (due to downsizing or other economic hardship).

Organizations with less than 50 employees may be exempt from providing leave if an authorized officer of the business determines that at least 1 of the following conditions is met:

• The provision of leave would exceed business revenues and cause the business to cease operating at minimal capacity;

• The absence of the particular employee(s) specialized skills, knowledge of the business or responsibilities would pose a substantial risk to the business;

• There are not sufficient workers to fill gaps left by employees on paid leave to keep the business operating at minimal capacity.

These reasons should be documented but not submitted to the Department of Labor. Where possible, employers may wish to consider making this determination on a global basis prior to employees requesting leave.

Implementing New Emergency Paid Leave

The FFCRA also added 2 weeks of emergency paid leave for employees at organizations with less than 500 employees. There is no 30-day prior work history requirement, so even brand new employees are eligible. Employees must be unable to work or telework due to one of 6 qualifying reasons for leave:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;

3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4. The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

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

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

Reason (1) includes state stay-at-home orders, but note that if the employer provides work or telework for the employee, the employee would not qualify for leave under this reason. Additionally, if an employer has furloughed an employee, or if the employee is not working due to lack of work caused by the downturn in the economy, even if due to the coronavirus, this is not qualifying leave. For reasons (1), (2) and (3), the employee qualifies for 2 weeks of paid leave at the employee’s regular rate of pay, capped at $511 per day, or $5,110 in the aggregate. For reasons (4), (5) and (6), the employee qualifies for 2 weeks of paid leave at ⅔ their regular rate of pay, capped at $200 per day or $2,000 in the aggregate. Under the expanded FMLA, reason (5) also qualifies employees for up to 10 additional weeks at the same rate of pay, capped at $12,000 over 12 weeks when combining the emergency paid leave with the expanded FMLA.

When an employee requests leave, document their name, the dates of leave requested and the qualifying reason. If the employee is sick and has been advised to self-quarantine, also document the name of their health care provider who gave the order.

Under circumstances where stay-at-home orders are in effect and your business is closed, employees do not qualify for leave under the FFCRA. You cannot offer employees leave from work if there isn’t any work to do. If those employees are furloughed, however, they can collect unemployment benefits while your business is closed.

Employees must be made aware of their leave options under the FFCRA. For in-person businesses this notice from the Department of Labor must be posted conspicuously. Businesses operating remotely should email the notice to employees.

Check out the full webinar below.