Passed by Congress and signed by the President: Wednesday, March 19, 2020
This summary is provided as a public service and is NOT a legal opinion; employers should look for implementing guidance from the Department of Labor and the Internal Revenue Service, which may include specific instruction on whether related entities can aggregate employees to reach the 500-employee threshold.
Read below for a summary of FFCR and updates to FMLA that affect emergency paid sick leave, new leave under the FMLA for a public health emergency, and health care.
Employers with 500 or fewer employees are subject to the emergency sick leave and FMLA leave for a public health emergency.
Emergency Paid Sick Leave
The FFCRA requires private employers to provide paid sick leave to employees. However, not all private employers are covered. It only applies to private employers with fewer than 500 employees, although it applies to public agencies with at least one employee. Covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus.
Full-time employees will receive 80 hours of emergency paid sick leave and part-time employees would receive a proportionately similar amount, based on the average number of hours they work in a two-week period.
The bill prohibits the employer from requiring an employee to use “other paid leave provided by the employer” before using emergency sick leave and creates civil penalties for taking adverse action/retaliating against an employee who uses emergency sick leave pay or complains about a violation. As amended, the bill appears to allow employers who already provide sick leave covering COVID-19 absences described in the bill to apply that existing sick leave to fulfill this mandate.
It also tighten the terms under which an employee qualifies for emergency paid sick leave by specifying the employee must be unable to work or telework due to a need for leave because:
- 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 due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for his or her son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing “any other substantially similar condition specified by the secretary of Health and Human Services in consultation with the secretary of the treasury and the secretary of labor.
The existing, traditional FMLA definitions of “health care provider” and “son or daughter” for emergency paid sick leave and specify the maximum amount of pay during the leave will not exceed $511 per day ($5,110 aggregate), when sick leave is used for reasons (a)-(c) and will not exceed $200 per day ($2,000 in the aggregate) when used for reasons (d) or (e). The FFCRA still prohibits the employer from requiring the employee to search for/find a replacement during the time the employee is using emergency paid sick leave.
Employers may exclude health care providers and emergency responders from this benefit and expressly states the secretary of labor has the authority to issue regulations allowing the employer of health care providers and emergency responders to opt out of the benefit and exempt small businesses with fewer than 50 employees from the requirement of paying for sick leave if this would jeopardize the viability of the business as a going concern.
New Category of FMLA for Public Health Emergency
FFCRA contains a provision that expands the FMLA to allow coverage for a new category: leave for a “qualifying need related to a public health emergency” with respect to COVID-19. This leave would only be available during the window of time beginning 15 days after the bill is enacted and ending on Dec. 31, 2020.
Unlike other categories of leave under the FMLA that generally apply to employers with 50 or more employees, it applies to private employers with fewer than 500 employees, with exemptions for employers that are health care providers or emergency responders, and public agencies. Exemptions may also be sought by employers with fewer than 50 employees whose economic viability would be jeopardized by complying with the new category of leave, under criteria that would be determined by the secretary of labor.
Unlike other categories of leave under the FMLA, public health emergency leave would be available to any employee who has been employed for 30 calendar days.
The bill’s definition of a “qualifying need related to a public health emergency” specifies this term “means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable due to a public health emergency.” “Public health emergency” has been defined as “an emergency with respect to COVID-19 declared by a federal, state or local authority.”
The initial 10 days (rather than 14 days) of public health emergency FMLA leave are unpaid, unless an employee voluntarily elects to use existing accrued paid vacation leave, personal leave, or medical or sick leave to cover the unpaid leave; the bill specifically prohibits an employer from requiring an employee to use existing paid leave during this time period. However, “emergency paid sick leave” created elsewhere in the bill would apply to this initial period. Unlike any other type of FMLA leave, the remaining period of qualifying leave for a public health emergency is paid, up to the full 12 weeks of leave, at a rate of pay that is “at least two-thirds of the regular rate” the employee would have earned under a normal work schedule.
The bill contemplates that the employer will return the employee to the same position at the conclusion of the leave for public health emergency, as with other types of FMLA leave. However, if an employer is unable to immediately reinstate the employee to the same or equivalent position because no such positions exist, the employer must make “reasonable efforts” to contact and reinstate the employee during the year following the conclusion of the leave period.
There is a provision stating employers of health care providers and emergency responders may elect to exclude those employees from FMLA leave for a public health emergency.
Waivers of Requirements for Commercial and Medicare Payment of Telehealth Services
The FFCRA clarifies existing copays, and prior authorization requirements are to be waived by group health plans and commercial plans for both in-person visits and telehealth visits related to COVID-19 testing-related services. Additionally, Medicare Part B and Medicare Advantage plans are not to impose any prior authorization requirements or cost shares for any online digital evaluation and management services related to COVID-19 testing and related services. These changes are to ensure individuals can receive COVID-19 testing and related services through telehealth modalities.