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By Gary A. Matthews and Michael A Frye of Jenkins Fenstermaker, PLLC on 09/14/2020

Employer Paid Leave under the Families First Coronavirus Response Act

COVID-19’s impact on West Virginia (WV) employers continues to shadow businesses, government, and individual citizens. The federal response to the pandemic-induced economic shutdown, the Families First Coronavirus Response Act (FFCRA), attempted to provide relief to families suffering due to business, childcare provider, and school closures. But the quickly passed legislation and intermittent, new guidance from the US Department of Labor has West Virginia employers scrambling to keep up. To help employers see the bigger picture, employers need to know the basic information about employer paid leave summarized below.

The FFCRA Employer Paid Leave Requirements

Covered employers under the FFCRA must provide paid leave or additional family and medical leave to employees for COVID-related matters. The act implements two related leave time provisions, the Emergency Paid Sick Leave (EPSL) Act and the Emergency Family and Medical Leave Act (EFMLA). This article focuses on the EPSL Act requirements regarding employer paid leave.

Covered employers under the EPSL Act means any employer with fewer than 500 employees. When two or more companies have common ownership, employers should use the Fair Labor Standards Act (FLSA) joint employer test to determine whether to count the employees of multiple companies as having a single employer. In calculating the number of employees, an employer should count all of the following:

  • Active employees;

  • Employees on leave;

  • Temporary employees jointly employed by more than one employer (such as staffing company employees); and 

  • Day laborers (such as those supplied by a temp agency).

At the other end of the spectrum, employers with fewer than 50 employees may apply for an exemption from EPSL Act requirements.

Employees eligible for paid sick leave under the EPSL Act are those unable to work or telework because of any of the following COVID-related circumstances:

  1. The employee is subject to a quarantine or isolation notice issued by the county health department or other appropriate government agency.

  2. The employee has received a self-quarantine recommendation from a health care provider.

  3. The employee is seeking a diagnosis for COVID-related symptoms.

  4. The employee is caring for someone who has received a government-issued quarantine or isolation notice or health care provider self-quarantine recommendation.

  5. The employee is caring for a son or daughter whose childcare facility or provider, or school is closed for COVID-related reasons.

  6. The employee is experiencing a substantially comparable condition as specified by the US Secretary of Health and Human Services in consultation with other departments.

In cases where leave is necessary to care for a son or daughter, the FFCRA defines “son or daughter” as limited to a child under age 18 or over age 18 but unable to provide self-care because of a mental or physical disability where the child’s relationship with the employee meets one of the following:

  • Biological child;

  • Adopted child;

  • Stepchild;

  • Legal ward; or

  • Child for whom the employee is standing in loco parentis.

Types of Employer Paid Leave Required and Rates of Pay

The EPSL Act requires covered employers to provide paid leave to employees who meet one or more of the COVID-related criteria above. The extent of paid leave and rates of pay depend on the employee’s employment status.

Employees seeking leave for reasons 1 through 4 or 6 are entitled to up to 80 hours of paid sick leave if they are full-time employees. The maximum period of leave for part-time employees seeking leave for these reasons is equivalent to the average hours worked over a two-week period.

Employee seeking leave for reason 5 above are eligible for up to 12 weeks of leave (using 40-hour work weeks). Part-time employees are eligible for paid leave based on the number of hours they are scheduled to work over that period.

Subsequent guidance from the Department of Labor provides that the paid leave need not be taken in a single block; rather, EPSL Act leave may be intermittent.

The rate of pay for EPSL Act leave is also based on the reason for leave from the list above:

  • Reasons 1, 2, or 3: The employer shall pay the employee the higher of the regular rate of pay or the applicable minimum wage, up to $511 per day and $5,110 per two-week period.

  • Reasons 4 or 6: The employer shall pay the employee the higher of 2/3 of the regular rate of pay or 2/3 of the applicable minimum wage, up to $200 per day and $2,000 per two-week period.

  • Reason 5: The employer shall pay the employee the higher of 2/3 of the regular rate of pay or 2/3 of the applicable minimum wage, up to $200 per day and $12,000 per two-week period in the case of two weeks of paid leave followed by up to 10 weeks of leave under the EFMLA.

The FFCRA specifically prohibits covered employers from discharging, disciplining, or discriminating against employees who have applied for or taken paid leave under the act.

Tax Credits Fund Employer Paid Leave

The FFCRA provides COVID-19-related tax credits (FFCRA credits) to covered employers to help fund the cost of paid leave provided pursuant to the act. Covered employers may use dollar-for-dollar FFCRA credits for reimbursement of all paid leave wages paid pursuant to the act. Covered employers may also apply for tax credits to cover costs of maintaining health insurance coverage.

To claim FFCRA credits, covered employers must have on record specific information regarding each employee given EPSL Act leave. The FFCRA requires each employee taking paid leave to provide the employer the following information:

  1. The employee’s name;

  2. The dates of requested leave;

  3. The reason for the requested leave(from the list above);

  4. A statement explaining why the reason for leave (from the list above) applies;

  5. The name of the government agency or entity that issued the quarantine or isolation order, if applicable;

  6. The name of the health care provider who advised quarantine of the employee or child in the employee’s care, if applicable;

  7. The name of the son or daughter the employee will be caring for, if applicable;

  8. The name of the childcare facility, provider, or school closed or unavailable, if applicable; and

  9. The employee’s statement that no other suitable person will be providing care for the child (if leave is to care for a child) during the leave period.

FFCRA Notice, Enforcement, and Sunset Date

The FFCRA requires covered employers to in a “conspicuous place” on work premises display a notice covering the act’s paid sick leave requirements. Covered employers that fail to comply with the act’s paid leave requirements face penalties and enforcement actions as described below:

  • For violations of the first two weeks’ paid sick leave or the act’s unlawful termination provisions, an employer will be subject to penalty and enforcement mechanisms provided in FLSA sections 16 and 17.

  • For violations of the additional ten weeks of paid leave based on childcare provider or school closure or unavailability, an employer will be subject to penalty and enforcement mechanisms provided in the Family and Medical Leave Act.

Significantly, the FFCRA has a sunset date: December 31, 2020. Thus, unless Congress passes legislation to extend that date, covered employers need to provide COVID-related paid leave for the remainder of 2020.

Help for Questions about FFCRA Employer Paid Leave

Piecemeal guidance and federal court decisions striking DOL guidance on FFCRA leave make understanding the FFCRA a moving target. Fundamental issues like determining whether an employer is covered by the act require a deeper understanding of the legal tests applied. 

Jenkins Fenstermaker, PLLC provides employers a complete menu of legal services, from handling business and commercial matters to answering labor and employment questions and providing hard-hitting litigation services. West Virginia employer lawyers Gary Matthews and Michael Frye are staying on top of FFCRA and related legislation to provide the most up-to-date answers to your questions on employer paid leave and more. For a consultation, call (304) 523-2100 or complete this online contact form.