(Editor’s Note: Today’s article is brought to you by our friends at Poster Guard, a division of ComplyRight and the leading labor law poster service that gets your business up to date with all required federal, state and local labor law postings, and then keeps it that way — for an entire year. Enjoy the read!)
While many states are announcing plans to reopen, it doesn’t mean that organizations don’t have to deal with COVID-19 issues anymore. For example, the Families First Coronavirus Response Act (FFCRA), which was signed into law in March 2020 stays in effect through the rest of the year.
We haven’t published anything comprehensive on the FFCRA, so I asked Ashley Kaplan, Esquire, senior employment attorney for ComplyRight, if she would give us an overview of the law and its implications for businesses both now and in the future. Thankfully, she said yes!
Ashley, before we talk about the FFCRA, it might be helpful to talk about sick leave in general. What’s the purpose of paid sick leave laws?
[Kaplan] In general, paid sick leave laws allow employees to earn paid sick days based on days or hours worked, to be used to recover from illnesses, seek medical care or, in some cases, attend to a sick family member. Some of these laws also include paid ‘safe’ days that provide earned leave for survivors of domestic violence, sexual assault, or stalking to seek services related to these incidents.
I’m hearing about a number of states enacting their own leave laws. Why would they do that?
[Kaplan] Many state legislators are recognizing the need for employees to balance work and family responsibilities – and the predicament they’re under if they can’t take time off to deal with sickness and other issues. In the absence of a federal paid sick leave law, states, counties and cities are stepping up and passing their own legislation. As of late April 2020, 12 states, the District of Columbia and at least 20 local jurisdictions provide paid sick days for employees.
Does paid sick leave apply to hourly or part-time workers? How would an employer determine which employees qualify for paid sick leave?
[Kaplan] Most paid sick leave laws aren’t restricted to full-time workers only. They also apply to hourly or part-time workers, allowing them to earn sick leave based on days or hours worked.
Paid leave under state and local laws is typically based on an accrual system tied to length of employment and number of days or hours worked, and these laws vary. For example, in Arizona, employees accrue one hour of sick leave for every 30 hours worked, for a maximum of 40 hours per year. In Michigan, it’s one hour of sick leave for every 35 hours worker and in Vermont, it’s one hour of sick leave for every 52 hours, with both states capping leave at 40 hours per year. Employers should check the specific requirements for the states, cities and counties under which they operate.
A common question I hear regarding paid sick leave involves “blackout dates”. Can employers do that?
[Kaplan] Blackout dates are typically associated with vacation scheduling, where an employer can block off certain dates or time periods due to staffing needs (during a busy season, for example). Because sickness and other issues can’t be anticipated, it’s not realistic to prohibit employees from using sick leave at certain times, and state/local paid sick laws typically do not allow for this.
So far, we’ve been talking about state paid sick leave laws. Does the federal government traditionally mandate paid sick leave?
[Kaplan] Until COVID-19, the federal government has not mandated paid sick leave – only unpaid leave under the Family and Medical Leave Act (FMLA). There is also a requirement for certain federal contractors to provide paid sick leave based on an Executive Order that went into effect in 2016.
In response to the COVID pandemic, the federal government recently passed the Families First Coronavirus Response Act (FFCRA), a temporary law requiring private employers with fewer than 500 employees, and most public employers, to provide up to 80 hours of emergency paid sick leave for certain COVID-related absences.
Okay, so what is the new FFCRA and who does it impact?
[Kaplan] The Families First Coronavirus Response Act (FFCRA) is emergency legislation that extends paid sick leave benefits under certain COVID-19 conditions. Until December 31, 2020, the law provides up to 80 hours of paid sick leave for eligible full-time employees (or the 2-week equivalent for part-time employees) who are:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19
- Advised by a health care provider to self-quarantine due to COVID-19 concerns
- Experiencing COVID-19 symptoms and seeking medical diagnosis
- Caring for an individual subject to a federal, state or local quarantine or isolation
order or advised by a health care provider to self-quarantine due to COVID-19 concerns
- Caring for the employee’s child if the child’s school or place of care is closed due to COVID-19 related reasons
- Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services
The federal-level emergency legislation affects all private employers with fewer than 500 employees as well as most public employers.
Be aware, too, that some states and cities have expanded their existing paid sick leave laws – or passed brand new laws – to provide leave for COVID-related purposes. Many of these laws mirror the FFCRA (mandating paid sick leave for COVID-related reasons beyond the employee’s illness) and in some cases they apply to larger employers not covered by the FFCRA.
You mentioned the Family and Medical Leave Act (FMLA). How does the FFCRA differ from the FMLA or other paid sick leave laws?
[Kaplan] The FFCRA was passed to address the specific needs of employees under the COVID-19 pandemic, while the Family and Medical Leave Act (FMLA) continues to serve the purpose of allowing employees to take unpaid leave for certain family and medical reasons. The FMLA is unpaid, job-protected leave, and applies to employers with 50 or more employees. To qualify for FMLA leave, employees must meet strict eligibility requirements (e.g., they must have worked at least 12 months for the employer).
That being said, the FFCRA has amended the FMLA to allow up to 12 weeks of partially paid leave for employees who are unable to work to care for a child whose school or place of care closed during the national COVID-19 emergency. In this situation, employees must be employed for only 30 days to qualify. As part of the FFCRA, this expanded provision does not apply to private employers with 500 or more employees, and companies with fewer than 50 employees may apply for an exemption.
Currently, employers have communication obligations under the FMLA. So, I’m assuming there are some for the FFCRA. Are there any solutions that employers can use to communicate the increasing number of laws to employees in a timely fashion?
[Kaplan] That’s correct. The FFCRA has a mandatory posting requirement effective through December 31, 2020. In addition, as more states, cities, and counties pass specific legislation addressing paid sick leave and other employment laws, employers should expect a continued increase in mandatory employee notification requirements. Most of these laws require employers to post updated notices in the workplace, and in some cases to personally distribute handouts or notices to each employee, including new hires. For your employees working remotely, posting compliance is just as important, so make sure to think about remote workers in your compliance strategy.
When it comes to all of the notices that must be personally distributed to your employees, it’s important to understand that these notices are separate and apart from labor law posters but equally as important in the eyes of the law.
Given the growing number of posting and handout requirements, the increased rate of changes, and the penalties and risks associated with non-compliance, I recommend partnering with a reputable poster and handout provider that ensures full coverage for federal, state and local compliance, as well as automatic updates/replacements whenever mandatory changes occur. These employee notification services address traditional employment laws such as paid leave and harassment, as well as the surge of new requirements in response to the pandemic addressing issues such as wage changes, furloughs and lay-offs, unemployment insurance, emergency leave, and more.
I want to extend a huge thanks to Ashley for sharing her knowledge with us. And I agree with her about the benefits of partnering with a poster and handout provider as part of the organizations’ compliance strategy.
A poster subscription service like Poster Guard® Compliance Protection can ensure full federal, state and local coverage, no matter how many legislative changes occur in a year. And a Mandatory Employee Handout Service provides electronic access to all of the latest mandatory notices required by federal, state and local laws.
Compliance is important. That’s exactly the reason organizations should consider a compliance partner. During a period of time when we need to be focused on working with the business to reopen and welcome employees back, it can be comforting to know that the compliance pros have our backs.10