Overview of Recent Federal COVID19 Legislation

The Families First Coronavirus Response Act Providing Temporary Relief During the COVID-19 Outbreak

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”; H.R. 6201) in response to the continued spread of the coronavirus and economic devastation. The law includes provisions for covered employers that (1) amend the FMLA from April 1 through December 2020 to cover leave and loss of income for employees that need to care for their children due to school and childcare closures caused by COVID-19; (2) provide eligible employees with two weeks of fully or partially paid sick leave for several COVID-19 related reasons; and (3) provide qualified employers with tax credits related to the paid leave mandated by the act.

Emergency Family and Medical Leave Expansion Act (“EFMLEA”)

Through the EFMLEA, employees can take up to 12 weeks of job-protected leave if they are unable to work onsite or need to work remotely to care for one or more of their children under 18 years of age following school or daycare closure. (Legislation states “son or daughter” instead of child other than the term “childcare provider.” For brevity, this article uses the term “child.”) The same applies to employees whose childcare provider is unavailable as a result of the COVID-19 pandemic. The Federal government will reimburse eligible private and public employers with under 500 employees with direct tax credits. The EFMLEA covers employees that have worked for their employers for over 30 days, compared to the twelve-month timeframe required for the traditional FMLA. While the first 10 days of leave are unpaid, employees can use vacation, sick, medical or personal. After 10 days, employees receive 2/3 of their regular pay, multiplied by the number of hours the employees otherwise would have been scheduled for work.

There are limited special restrictions for employers with fewer than 25 workers such as not requiring job restoration if the employee takes time off under EFMLEA and his or her job no longer exists due to economic conditions or other changes in operating condition caused by the public health outbreak. The Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees if the EFMLEA’s “requirements would jeopardize the viability of the business.” The Department of Labor (“DOL”) is currently drafting regulations pertaining to this exemption. At this time, exemptions will only be allowed for leave due to childcare issues, such as school closing or unavailability of another childcare provider. The DOL will provide exemptions to allow employers of health care providers and emergency responders to exclude these employees from taking leave under the EFMLEA.

Employers (including self-employed individuals) who pay benefits under the EFMLEA will be eligible for a tax credit refund equal to 100% of qualified pay for each calendar quarter. However, this credit is capped at $200 per day per employee or $10,000 in the aggregate for each employee. Public sector employers do not qualify for a credit.

The EFMLEA takes effect April 1, 2020, and runs through December 31, 2020.

Emergency Paid Sick Leave Act (“EPSLA”)

Also established under the FFRCA is the EPSLA which provides eligible employees (employees of private entities or certain covered public sector employers with fewer than 500 employees) with 80 hours of fully or partially paid sick leave for a number of reasons associated with COVID-19. Eligible employers will receive a direct tax credit to reimburse them for providing paid emergency sick leave. The EPSLA requires that employers provide sick leave to employees that are unable to work or perform remote work due to one or more of the following: 1) the employee is subject to a Federal, State or local quarantine/isolation order because of COVID-19; 2) a health care provider advised the employee to engage in a COVID-19 related self-quarantine; or the employee has COVID-19 symptoms and is seeking a formal medical diagnosis. In these cases, the rate of pay is the higher of either the employee’s rate of pay or the highest applicable minimum wage. For the purposes of the Act, paid sick time tax credit is capped at $511 per day per employee and $5,110 in the aggregate per employee. Public sector employers do not qualify for a credit.

The EPSLA also applies to employees who: 1) are caring for an individual who has been quarantined or isolated; 2) a child if the school or other place of care has been closed, or the child care provider is unavailable due to COVID-19; 3) are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (none of which have yet been defined). For these circumstances, the leave must be greater than 2/3 of the employee’s regular pay rate or 2/3 of the highest applicable minimum wage and paid sick leave is capped at $200 per day per employee and at $2,000 in the aggregate per employee. Full-time employees may take 80 hours of paid sick time and part-time employees must receive the average number of hours typically worked in a two-week period. The Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees if the EPSLA’s “requirements would jeopardize the viability of the business as a going concern.” The DOL is currently drafting regulations pertaining to this exemption. At this time, exemptions will only be allowed for leave due to childcare issues caused by school closings or unavailability of another childcare provider. The DOL will also provide an exemption to allow employers of health care providers and emergency responders to exclude these employees from leave under the EFMLEA.

The EPSLA takes effect on April 1, 2020 and runs through December 31, 2020.

Emergency Unemployment Insurance Stabilization and Access Act of 2020 (“EUISAA”)

Lastly, the FFRCA established EUISAA which provides emergency funding for unemployment benefits related to loss of work caused by the COVID-19 pandemic.

This Federal funding will be given to states where unemployment insurance compensation claims increase by at least 10% from the previous calendar year if they adhere to the following requirements for eligibility:

  1. Mandating that employers notify employees of available unemployment compensation;
  2. Making applications available in at least two of the following mediums: in-person, phone or email
  3. Notifying applicants when an application is received and when it is processed; and
  4. Reducing eligibility requirements (such as waiving the one-week waiting period, being less strict about deadlines, or reducing or even eliminating work search requirements in cases where employees have a return date).

The DOL recently issued helpful guidance pertaining to the EFMLEA and the EPSLA. To view the DOL Q&A, click here. Additionally, the Massachusetts Department of Unemployment Assistance (“MA DUA”) has recently enacted a new emergency regulation pertaining to the EUISAA. To view the MA DUA’s guidance with respect to the EUISAA, click here.

For more information on the COVID-19 related unemployment assistance, please see WLG’s post, click here. For more information on the COVID-19 outbreak, click here. For more information on the FFCRA, click here.

WLG’s Compliance Advice and H.R. Consulting Services team has extensive experience helping organizations like yours navigate the complex and ever-changing landscape of employment law – let us know how we can help!

“Novel Coronavirus nCoV” by AJC1 is licensed under CC BY-SA 2.0
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