By Amy L. DeLuca, Esq. and Matthew N. Danese, Esq.
With the recent passage of legislation at both the state and federal levels, employers have been scrambling to determine whether they fall under the various provisions and what must be done to comply with the new laws. The Families First Coronavirus Response Act ("FFCRA" or "Act") is effective April 1, 2020. The Department of Labor ("DOL") has issued guidance regarding the enforcement of the FFCRA. We have put together a summary of some of the most commonly asked questions we have received over the past few weeks.
As an initial matter, in Ohio, businesses should only be operating to the extent they are permitted to do so under the Stay at Home Order.
What must an employer tell employees about FFCRA?
The FFCRA requires employers to post a notice to employees. This must be posted now. The notice suggested by the Department of Labor ("DOL") is included in the link below:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
If I send an employee home because he/she has symptoms, do I have to pay him/her?
Under an Ohio Order issued by Governor DeWine, if the employee does not have paid leave available and is unable to work because he/she was sent home by the employer, the employee may be eligible for unemployment.
In addition, depending on the circumstances, the employee may also be eligible for paid leave under the FFCRA. Additional information regarding the leave available under the FFCRA appears below.
For what reasons may an employee take paid sick leave under the FFCRA?
The sick leave provision of the FFCRA sets forth six reasons allowing an employee to qualify for leave under the Act. Depending on the reason, the employee may be entitled to full pay or 2/3 pay, up to a set capped amount.
The sick leave provisions of the Act require covered public employers and private employers with less than 500 employees to provide 80 hours of paid sick time (for employees who work less than 40 hours/week, the paid leave is the typical number of hours the employee is scheduled to work in a two-week period) to employees who are unable to work (whether in person or from home) due to the following reasons:
The Act caps the paid leave at $511/day (up to $5,110 per employee) when the leave is taken for the first three reasons listed above and 2/3 of the employee's regular rate of pay or minimum wage, whichever is greater, capped at $200/day (up to $2,000 per employee) when leave is taken for any of the last three reasons. Failure to pay the paid leave required under the Act is deemed to be a violation under the Fair Labor Standards Act.
Employees are immediately eligible for these leave benefits, but certain exclusions apply. Health care providers and emergency personnel may be excluded from coverage. In addition, under the Act, the Secretary of Labor is permitted to promulgate regulations to: further exclude medical personnel and emergency responders; in certain instances, exempt businesses with less than 50 employees; and provide consistency between the paid leave and the tax credits. The Act further prohibits retaliation against employees who take leave under the Act.
This paid leave will not carry over into the next calendar year and the provisions sunset on December 31, 2020.
For what reasons may an employee take emergency family and medical leave under the Act?
The short answer is there is only one reason under the Act for which employees are entitled to emergency family and medical leave and that reason is to care for a minor child who is home as a result of schools and day cares being closed or otherwise unavailable due to COVID-19. It should be noted that under recent guidance provided by the DOL, this provision should also be applied to the care of children 18 years of age and older who are unable to care for themselves due to mental or physical disabilities.
The sick leave provisions of the Act require covered public employers and private employers with less than 500 employees to provide up to 12 weeks of leave under the FMLA for "a qualifying need related to a public health emergency." "Qualifying need" refers to a situation where an employee is unable to work (whether in person or at home) because he/she must care for a minor child whose school or day care is closed or otherwise unavailable due to a public health emergency.
Employees who have been employed for at least 30 calendar days are eligible for this leave. The first 10 days (2 weeks) of this leave may be unpaid unless the employee opts to run paid leave concurrently with the emergency leave under the FMLA. While an employee may opt to run paid time off concurrent with this time (in order to receive pay for the first 10 days), an employer cannot force an employee to do so. The remainder of the leave (10 weeks) is paid leave, paid at two-thirds of the employee's regular rate for the typical number of hours the employee would normally be scheduled to work. The pay is capped at no more than $200/day ($10,000 aggregate per employee). For employees who work part-time or inconsistent schedules, their paid leave should be determined based on the average number of hours worked per week for the six months prior to the leave. If an employee has worked less than six months, the employee is entitled to what was his/her reasonable expectation with regard to weekly work hours upon hiring.
Generally speaking, leave taken under this provision is job-protected (employee must be returned to same or similar position upon returning for leave). However, for employers with less than 25 employees, subject to certain conditions, if a position no longer exists as a result of changes made due to a public health emergency (i.e., business slowdown due to COVID-19), the job protection provision may not apply. In addition, the Act also permits the Secretary of Labor to exempt health care providers and first responders and small businesses (those with less than 50 employees) if the leave would threaten the viability of the business as a going concern. Finally, the Act excludes employers with less than 50 employees in a 75-mile radius from civil damages under the FMLA if an employee initiates a lawsuit.
All of these provisions have a December 31, 2020 sunset date.
What records does an employer need to keep with respect to leave under the FFCRA?
The Act includes provisions allowing for the ability to seek tax credits for pay provided under the FFCRA. The DOL has advised that if an employer intends to claim a tax credit under the FFCRA for payment of the sick leave or expanded family and medical leave wages, the employer should retain appropriate documentation in its records. It is suggested that employers should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. Employers are not required to provide leave if materials sufficient to support the tax credit have not been provided.
If an employee takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, the employer may also require the employee to provide any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
What should an employer do if they believe they qualify for an exemption under the Act?
The DOL has stated that an employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing: (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons; and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. Note that the exemption only applies to sick leave and expanded family and medical leave for child care purposes and not sick leave for the other five reasons listed in the Act. A small business may claim this exemption if an authorized officer of the business has determined that:
While nothing needs to be submitted at this time in order for a business to operate under the exemption, an "authorized officer of the business" must make the determination and document it in the event the determination is challenged.
What if my business is an essential business and employees refuse to come to work?
Depending on the situation, this could be a disciplinary issue resulting in a voluntary resignation/job abandonment. While employers must verify whether the situation qualifies for leave under the FFCRA, if it does not, disciplinary action may be appropriate.
Has the Department of Labor issued other guidance?
Yes, the DOL has issued guidance on the application of the FFCRA. Links to two guidance pages are below.
https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
Has the Ohio Bureau of Workers' Compensation ("BWC") issued any COVID-19 related Orders?
The BWC issued an order stating that beginning Wednesday, March 18, 2020, the Commission will begin conducting hearings by telephone for the following issues: permanent total disability, temporary total disability or the termination of temporary total disability, wage loss, allowance and additional allowance.
In addition, on Saturday March 21, 2020, Ohio Lt. Governor Husted and the BWC announced that due to the COVID-19 pandemic, employer's premium installment payments due for March, April, and may be deferred until June 1, 2020. At that time, the matter will be reconsidered by the BWC. The BWC will not cancel coverage or assess penalties for nonpayment or late-payments during this three-month period. The BWC has instituted this deferment in an effort to alleviate economic concerns of Ohio employers. Payments which were set to be due in March, April, and May total approximately $200 million which Lt. Governor Husted stated he hopes will now stay in the economy.
The BWC will continue to provide updates on how the Bureau will assess premium installment payments after June 1, 2020.
This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.