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On March 18, the federal Families First Coronavirus Response Act (“FFCRA”) became law.  The FFCRA includes two components regarding employee leave: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).  In the District of Columbia, the FFCRA is in addition to the COVID-19 Response Emergency Amendment Act, which establishes additional employment protections that apply to all D.C. employers and employees.

When will the EPSLA and EFMLEA apply?

  • The requirements will apply from April 1, 2020 to December 31, 2020.

Which employers are covered?

  • The FFCRA applies to private employers with fewer than 500 employees.

Which employees are eligible?

  • All employees are eligible for leave under the EPSLA.  Employees who have been employed for at least 30 calendar days are eligible for leave under the EFMLEA.

What are the Qualifying Reasons for leave?

  • An employer must provide each employee paid sick leave if an employee is unable to work or telework because the employee:
  1. Is subject to a government quarantine or isolation order related to COVID-19;
  2. Has been advised by a healthcare provider to self-quarantine;
  3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Is caring for an individual who is subject to a government quarantine or isolation order, or has been advised by a healthcare provider to self-quarantine, related to COVID-19;
  5. Is caring for a son or daughter of the employee if the child’s school has been closed, or the childcare provider is unavailable, due to COVID-19 precautions, under the EPSLA, or due to a COVID-19 emergency declaration, under the EFMLEA; or
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

What is the duration of leave?

  • Employees are entitled to up to two weeks, or 80 hours, of paid leave for any Qualifying Reason under the EPSLA. For Qualifying Reason No. 5, employees are entitled to up to 10 weeks of additional paid leave under the EFMLEA.

How is the paid leave calculated?

  • For Qualifying Reasons 1, 2, and 3, employees are entitled to pay at the regular rate or the applicable minimum wage, whichever is greater, up to $511 per day or $5,110 in aggregate.
  • For Qualifying Reasons 4 and 6, employees are entitled to pay at two-thirds the regular rate or the applicable minimum wage, whichever is greater, up to $200 per day or $2,000 in aggregate under the EPSLA.
  • For Qualifying Reason 5, employees are entitled to pay at two-thirds the regular rate or the applicable minimum wage, whichever is greater, up to $200 per day or $2,000 in aggregate under the EPSLA and up to $200 per day or $10,000 in aggregate under the EFMLEA.

Part-Time Employees: The calculation is based on the number of hours the employee would normally be scheduled to work.

Are there notice requirements?

  • By Employer: Each employer must post in conspicuous places on the premises a notice of FFCRA requirements. The Secretary of Labor has published a model notice.
  • By Employee: Where the need for EFMLEA leave is reasonably foreseeable, an employee must provide the employer with notice of leave as is practicable.

What is the relationship to other leave programs?

  • The EPSLA does not diminish rights or benefits to which an employee is entitled under any other law, collective bargaining agreement, or employer policy.  An employee may not be required to take other paid leave provided by the employer before taking EPSLA leave.
  • The first 10 days of EFMLEA leave may be unpaid.  An employee may elect to substitute any available paid leave, including EPSLA leave, during this time.

D.C. Note: Each D.C. employer must provide Declaration-of-Emergency Leave (“DOE Leave”) to each employee who is unable to work as a result of the circumstances giving rise to the COVID-19 public emergency, during the emergency period.  DOE Leave may be unpaid.

Is there assistance for employers to pay for required leave?

  • Employers required to provide paid leave under the FFCRA may receive a tax credit equal to 100% of qualified EPSLA wages, EFMLEA wages, and qualified health plan expenses paid each calendar quarter.

Is there flexibility for small employers?

  • The Secretary of Labor may issue regulations for good cause to exempt employers with fewer than 50 employees from the leave requirements if the imposition of the requirements would jeopardize the viability of the business as a going concern.  The Department of Labor has stated that it will be establishing criteria for this exemption in forthcoming regulations.
  • If an employee takes any of the additional 10 weeks of EFMLEA, an employer with fewer than 25 employees is not subject to the requirement to restore the employee to their position on return under the following conditions:
    • (1) the position no longer exists due to economic or changed operating conditions that affect employment and are caused by a COVID-19 emergency,
    • (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and
    • (3) if reasonable efforts fail, the employer makes reasonable efforts to restore the employee within one year the date the qualifying need concludes, or 12 weeks after the date the employee’s leave commences, whichever first occurs.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999.