The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act have created new rights such as expanded family and medical leave and emergency paid sick leave for local governments and private organizations to comply with. In a May 1 webinar titled, Employment Law and COVID-19, Neil Reichenberg, executive director, International Public Management Association for Human Resources (IPMA-HR), provided information on the major provisions of these laws and the regulations and guidance that have been issued by the federal government. Here's what we learned.
Families First Coronavirus Response Act (FFCRA)
This includes the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act. It is effective from April 1 to December 31, 2020, and applies to local governments of any size, and is overseen and enforced by the Labor Department’s Wage and Hour Division. The EFMLEA amends the existing Family and Medical Leave Act (FMLA). It applies to any employee who has been working for 30 calendar days and is unable to work or telework due to a need for leave to care for a child under the age of 18 if the school or place of care is closed, or the childcare provider is unavailable due to a public health emergency.
Private employers get a payroll tax credit in the amount of the total paid emergency family and medical leave and emergency paid sick leave wages that they can use to offset the social security portion of FICA payroll taxes that they pay on all other employees. Governments are not eligible for these tax credits, though there is a proposed bill to include them.
How much and for how long? Employers can require (or employees can elect after the first two weeks of emergency family and medical leave) to take the remaining expanded family and medical leave at the same time as any existing paid leave that employees have accrued. This would include personal leave or vacation, but not medical or sick leave. If using existing leave concurrently, employers must pay the full amount to which employees are entitled under existing paid leave for the period of the leave taken.
If employees exhaust their preexisting paid leave and are still entitled to additional expanded family and medical leave, employers must pay at least two thirds of pay for subsequent periods, up to $200 per workday. Total FMLA leave that can be taken in a calendar period is 12 weeks. If an employee used emergency family and medical leave prior to April 1, 2020, they would be able to use the total number of weeks deducted from 12 weeks.
Emergency Paid Sick Leave Act (EPSLA)
EPSLA requires employers to provide full-time employees with 80 hours of paid sick time and part-time employees with prorated paid sick leave if employees are unable to work or telework for specific reasons to protect the health of the office and the employee. The employee would qualify if they were subject to a federal/state/local quarantine or isolation order related to coronavirus, they had been advised by a health care provider to self-quarantine due to coronavirus concerns, or they are experiencing symptoms of coronavirus and seeking a medical diagnosis.
EPSLA applies when an employee…
- Is caring for someone under a quarantine or isolation order or advised to self-quarantine by a health care provider.
- Is caring for a child whose school or care provider is closed or unavailable due to coronavirus precautions.
- Is experiencing any other condition like the coronavirus.
This legislation established a bottom line for employers to follow at minimum. The DOL encourages Human Resources and employees to collaborate to come up with a compromise considering both the employees' and employers’ needs. Ultimately this period will end and everyone will return to normal. Employers don’t want to erode morale and employees want to have a job to return to.
Coronavirus Aid, Relief, and Economic Security (CARES) Act
Section 2302 of the CARES Act allows the deferral of the employer’s portion of the employment tax deposits and payments through December 31, 2020. The deferral applies to deposits and payments of the employer’s share beginning on March 27, 2020 and ending December 31, 2020. Half of the deferred deposits of the employer’s share of social security tax must be deposited by December 31, 2021, and any remaining amount by December 31, 2022.
The CARES Act also provides unemployment assistance for governments in a few ways. The federal government will reimburse governments for half of the costs they incur to pay for all unemployment benefits through December 31, 2020, outlined in Section 2103 of the CARES Act. Section 2104 outlines the federal government providing $600 of unemployment in addition to the weekly unemployment benefit through July 31, 2020. If individuals remain unemployed after state benefits are no longer available, the federal government will fund up to an additional 13 weeks of unemployment benefits outlined in Section 2107.
Finally, employers should take steps to determine if employees entering the workplace have COVID-19 due to a potential health threat for others. The CARES Act allows employers to administer coronavirus testing before employees enter their workplace.
FFCRA requires employers to display a poster detailing employee rights to paid sick leave and expanded family and medical leave under the law. Furthermore, IPMA-HR has created a coronavirus resource page and additional information can be found on their website. Guidance on the FFCRA is available online, while the Equal Employment Opportunity Commission (EEOC) provides technical assistance about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated December, 2020). For additional information, feel free to contact Neil Reichenberg, IPMA-HR, firstname.lastname@example.org.
For more on employment law during the COVID-19 pandemic, listen to the teleconference and download the presentation slides from the webinar by visiting our Local Gov Life Episode 10 page.