Congress Enacts COVID-19 Paid Leave Entitlements

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by Jonathan Mook
DiMuroGinsberg, PC
The coronavirus has wreaked havoc throughout the country, creating significant hardships on employees and employers alike as businesses adjust to the new world in which persons are advised to “shelter in place.” To help alleviate the situation, Congress recently passed the Families First Coronavirus Response Act (“FFCRA”), which creates two new types of paid leave for employees: (1) Expanded Family and Medical Leave and (2) Emergency Paid Sick Leave. To assist employers in paying for the newly created paid leave entitlements, employers will be eligible to receive tax credits in connection with their employee payroll tax filing.

Here’s a summary of what the new leave entitlements provide:

Who Is Eligible?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons. Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave.

What Are the Qualifying Reasons for Leave?

To be a qualifying reason, the leave must be related to the COVID-19 pandemic, and the employee must be unable to work (including unable to telework) for one of the following reasons:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
What Are the New Paid Leave Entitlements?

Generally, employers covered under the Act must provide employees:

Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of the regular rate of pay, or the applicable state or Federal minimum wage, paid at:

  • 100% for qualifying reasons Nos. 1-3 above, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reasons Nos. 4 and 6 above, up to $200 daily and $2,000 total; and
  • Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason No. 5 above, up to $200 daily and $12,000 total.

A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also apply to amounts paid or incurred to maintain health insurance coverage.

Enforcement

Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA. The U.S. Department of Labor (DOL) will investigate and enforce compliance with the FFCRA.

Notice

Employers are required to post a notice informing employees as to their entitlement to both Expanded FMLA and Emergency PSL. For those employees who are teleworking, the notice can be emailed to them or placed on an intranet site and employees notified to view it there. The DOL has issued a poster for employers to use to provide the required notice to their employees.

Additional Information

If you would like to receive a copy of the DOL poster, or have any questions about the new leave requirements, please contact DiMuroGinsberg’s Employment Law Practice Leader, Jonathan R. Mook at jmook@dimuro.com.