Gov. Jared Polis’ Executive Order D 2020 045, which allows for the performance of voluntary…
The $2 trillion CARES Act has attracted most of the media attention in terms of the U.S. legislative response to the COVID-19 pandemic (see our analysis here), but another piece of legislation – the Families First Coronavirus Response Act (FFCRA) – has significant impacts that affect many businesses, likely including yours.
The Key Components of the FFCRA
The FFCRA requires some businesses to extend paid sick leave to employees who are unable to work (including telework) and who have been employed at least 30 days prior to their leave requests in three different ways:
- An employee may request two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at 100% for the following qualifying reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- The employee has been advised by a health care provider to self-quarantine related to COVID-19; and
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
- Businesses must extend paid leave to employees who have been employed at least 30 days prior to their leave request at a rate of 2/3 of their regular rate of pay for up to 2 weeks for the following qualifying reasons:
- The employee is caring for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID- 19; or
- The employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
- Businesses must extend paid leave to employees who have been employed at least 30 days prior to their leave request at a rate of 2/3 of their regular rate of pay for up to 12 weeks if the employee 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
It is important to note that an employee can only take a total of 12 weeks of leave so if the employee requests two weeks of sick leave, the employee would only be entitled to 10 weeks of paid leave at a rate of 2/3 of their regular rate of pay. In addition, if the employee takes FMLA leave for any reason other than COVID-19, the employee is not entitled to more than 12 weeks of leave total.
In addition, the government has created caps for the amount an employee may be reimbursed. The paid sick leave reimbursed at 100% has a cap $511 daily and $5,110 total. Requested leave to take care of a family member who is subject to an isolation order related to COVID-19 has a cap of $200 daily and $2,000 total. If an employee requests leave to care for his or her child whose school or place of care is closed due to COVID-19, their daily rate of pay is also capped at $200 which amounts to $12,000 total.
Private employers providing this leave will be given a commensurate employment tax credit from the federal government. However, the tax credits are limited to the capped amounts described above. The employment tax credits are not available to public employers.
To Whom Does the FFCRA Apply?
The FFCRA applies to private businesses with fewer than 500 employees or a public employer of any size. The FFCRA paid leave provisions do not apply to:
- Businesses that have more than 500 employees and it does not apply to
- Health care providers and first responders.
Note that small businesses with fewer than 50 employees can also request an exception from some of these requirements.
Determining the Definitions of Health Care Worker.
The FFCRA itself does not define the terms health care provider However, on April 6, 2020, the Department of Labor published its final rule and defined health care provider, for the purposes of exemption from the act, very broadly.
The rule states: “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
(Note: It is important to remember that with respect to nursing homes, home health care employees, and community living facilities, the Colorado Department of Labor and Employment’s Emergency HELP Rules still apply and require employers to provide a small amount of paid sick leave to employees with flu-like symptoms who are being tested for Covid-19 or who are under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19.)
The rule goes on to say: “This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”
Narrow Exception for Small Businesses
As mentioned above, a small business with fewer than 50 employees can apply for an exception from some these paid leave requirements if an authorized officer of the business determines that providing an employee such a leave would jeopardize the viability of the business. This essentially means that the business would have to demonstrate that permitting the leave would cause it to cease operating at a minimal capacity because expenses would exceed revenues or there is no one to replace the skill set or services provided by the employee requesting leave.
Key Dates for Complying with the FFCRA
The FFCRA goes into effect April 1, 2020, and expires on December 31, 2020. The Department of Labor (DOL) has stated that there is a moratorium of enforcement for 30 days. However, for reasons that are not clear, it started that moratorium on March 18, 2020 and it will run through April 17, 2020. However, employers who take advantage of this moratorium, will likely be expected to make employees who request such leave starting on April 1, 2020, whole.
While there are still a lot of unanswered questions, the DOL did publish a final rule on April 6, 2020, that provides some guidance.
Our healthcare attorneys continue to closely follow these developments, as well as many others related to changing laws, regulations and rule relating to the COVID-19 pandemic. If you have specific questions about how the regulatory guidance affects you and your organization, please contact us to discuss it. As always, Caplan & Earnest attorneys are staying on top of these developments and are here to answer your questions.