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Families First Coronavirus Response Act goes into effect today, April 1, 2020 - what does it mean for employees?

Posted by Kathy Harrington-Sullivan | Apr 01, 2020 | 2 Comments

The Families First Coronavirus Response Act (FFCRA) goes into effect today. We've compiled some questions and answers that the Department of Labor has addressed, and we've boiled them down so you know what your rights are and what steps you can take to protect yourself and your family during the pandemic.

Which employers have to abide by FFCRA? All employers with fewer than 500 employees.

Which employees does FFCRA apply to generally? Only those who cannot work OR telework for listed reasons (below).

What options does FFCRA provide?

(1) Two weeks paid sick leave - applies to all employees of covered employers who qualify for listed reasons.

(2) 10 additional weeks leave - applies only to those employed for 30 days with a covered employer who qualify because of COVID childcare unavailability.

How much will I be paid for the 2 weeks of sick leave if I need it?

Pay will be at full regular rate (capped at $511/day) if YOU are:

(1) quarantined by a Federal, State, or local order related to COVID-19;

(2) quarantined by a health care provider because of COVID-19; or

(3) experiencing symptoms of COVID-19 and are seeking medical diagnosis.

Pay will be 2/3 regular rate of pay (capped at $200/day) if YOU are CARING for someone who is:

(1) quarantined by a Federal, State, or local order related to COVID-19;

(2) quarantined by a health care provider because of COVID-19; or

(3) a child whose school or care is unavailable because of COVID-19.

How much will I be paid for the 10 additional weeks of leave if my child's school or care continues to be unavailable because of COVID-19? Pay will be 2/3 regular rate of pay (capped at $200/day)

If I am home for a listed childcare reason, do I get paid sick leave, expanded FMLA leave, or both? You may be eligible for both, but only for a total of 12 weeks of paid leave.  

Can my employer deny me paid sick leave for a reason identified in the Emergency Paid Sick Leave Act? No. 

Is all leave under FMLA now paid leave? No. The only kind of FMLA leave that is paid is based on care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19

Are the paid sick leave and expanded FMLA leave requirements retroactive? No, but note that if your employer fires you before or after April 1st because you sought paid sick leave or expanded FMLA, please call Barrett & Farahany to speak with an attorney – 404-487-0903

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How do I count 30 days of employment? Count 30 calendar days immediately prior to the day your leave would begin. If you are temp to full-time, any days you worked as a temp count toward this 30-day period.  

What documents do I need to give my employer to get paid sick leave or expanded FMLA? You must provide documentation in support of your paid sick leave. You may also have to provide a notice of closure or unavailability from your child's school care provider.

Can I take paid sick leave or expanded FMLA leave intermittently while teleworking? Yes, if your employer allows it and if you are unable to telework your normal schedule of hours because of one of the qualifying reasons above. You may take intermittent leave in any increment, provided that you and your employer agree. Employers and employees should collaborate to achieve flexibility and meet mutual needs.

Can I take paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)? It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for someone who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide paid sick leave as necessary to keep you from spreading the virus to others. 

What if I don't take the full 2 weeks of sick leave? If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

Can I take expanded FMLA leave intermittently while my child's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking? Yes, but only with your employer's permission. Intermittent expanded FMLA leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded FMLA leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded FMLA leave? No. If, prior to the FFCRA's effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded FMLA leave but you may be eligible for unemployment insurance benefits. You should contact your State unemployment insurance office for specific questions about your eligibility. Note also that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded FMLA leave? No. If your employer closes after the FFCRA's effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded FMLA leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local order to do so. 

If my employer closes my worksite while I am on paid sick leave or expanded FMLA leave, what happens? If your employer closes while you are on paid sick leave or expanded FMLA leave, your employer must pay for any paid sick leave or expanded FMLA you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded FMLA leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. 

If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded FMLA leave? No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded FMLA leave. However, you may be eligible for unemployment insurance benefits. 

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded FMLA leave? No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded FMLA leave. However, you may be eligible for unemployment insurance benefits. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded FMLA leave as warranted.

If my employer reduces my scheduled work hours, can I use paid sick leave or expanded FMLA leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded FMLA leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.You may, however, take paid sick leave or expanded FMLA leave if a COVID-19 qualifying reason prevents you from working your full schedule. 

Can I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded FMLA leave? No. If your employer provides you paid sick leave or expanded FMLA leave, you are not eligible for unemployment insurance. However, the DOL recently allowed states to extend partial unemployment benefits to workers whose hours or pay have been reduced. 

If I elect to take paid sick leave or expanded FMLA leave, must my employer continue my health coverage? If your employer provides group health coverage that you've elected, you are entitled to continued group health coverage during your expanded FMLA leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded FMLA leave. You generally must continue to make any normal contributions to the cost of your health coverage. 

If I remain on leave beyond the maximum period of expanded FMLA leave, do I have a right to keep my health coverage? If you do not return to work at the end of your expanded FMLA leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under State laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from State to State.) Contact the Employee Benefits Security Administration at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers. 

If you elect to take paid sick leave, your employer must continue your health coverage. 

As an employee, may I use my employer's preexisting leave entitlements and my FFCRA paid sick leave and expanded FMLA leave concurrently for the same hours? No. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded FMLA leave under the FFCRA, up to your normal earnings, with preexisting leave. 

What do I do if my employer, who I believe to be covered, refuses to provide me paid sick leave? Call the Barrett & Farahany case evaluation line and speak with one of our attorneys - 404-487-0903.

What do I do if my employer, who I believe to be covered, refuses to provide me expanded FMLA leave to care for my own son or daughter whose school or place of care has closed, or whose child care provider is unavailable, because of COVID-19? Call the Barrett & Farahany case evaluation line and speak with one of our attorneys - 404-487-0903.

Do I have a right to return to work if I am taking paid sick leave or expanded FMLA leave? Generally, yes, the new law requires employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave, though there are some exceptions. If you are not restored to work, you should call our case evaluation line and speak with one of our attorneys - 404-487-0903

Also, you should know that your employer is prohibited from firing, disciplining, or discriminating against you because you sought or took paid sick leave or expanded FMLA leave - if you've been fired in that circumstance, please call us right away at 404-487-0903.

Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my regular FMLA leave? Yes, if you are an eligible employee, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under regular FMLA, but your eligibility for expanded FMLA leave depends on how much regular FMLA leave you have already taken during the previous 12-month period. You may only take a total of 12 workweeks for FMLA or expanded FMLA leave reasons during a 12-month period. 

Can I take leave under FMLA over the next 12 months if I used some or all of my expanded FMLA leave under the Emergency FMLA Expansion Act? You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency FMLA Leave Expansion Act. However, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA, but please note that if you take paid sick leave concurrently with the first two weeks of expanded FMLA leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.

If I take paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which I am entitled under State or local law, or my employer's policy? No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law, any applicable collective bargaining agreement, or your employer's existing company policy.

May I use paid sick leave and expanded FMLA leave together for any COVID-19 related reasons?  No. The Emergency FMLA Expansion Act applies only when you are on leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. However, you can take paid sick leave under the Emergency Paid Sick Leave Act for numerous other reasons.

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded FMLA leave?  A health care provider is anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state's or territory's or the District of Columbia's response to COVID-19. To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

Who is an emergency responder? For the purposes of employees who may be excluded from paid sick leave or expanded FMLA leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state's or territory's or the District of Columbia's response to COVID-19. To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Is FFCRA the only relief available to employees? No. Another set of laws just passed last week (the CARES Act) that includes provisions helpful to both business and employees, including a $600 weekly boost to weekly unemployment payments, as well as a 13-week extension of unemployment payments that would extend benefits to 39 weeks rather than 26 weeks. 

If you have further questions or concerns and would like to speak with an attorney about your situation, our team of knowledgeable attorneys will be happy to speak with you. Reach out to us at 404-487-0903, or visit our website at www.justiceatwork.com to schedule a call with an attorney for a date and time that works best for you.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany who helps potential clients understand the law, clarify their rights, and determine which steps they can take to protect themselves and their jobs.

Comments

Melissa Reply

Posted Apr 01, 2020 at 12:53:42

Excellent post. A lot of work went into it. Thank you so much.

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