The Families First Coronavirus Response Act
On March 18, 2020, Congress passed emergency legislation to address many aspects of the COVID-19 outbreak. The Families First Coronavirus Response Act ("FFCRA") and existing Massachusetts law on paid sick time include important rules that will affect many small business owners in Massachusetts during the COVID-19 crisis.
Below is a summary of the laws on employee leave as they existed before coronavirus, recent changes to those laws, and how those changes might affect your business.
Below is a summary of the laws on employee leave as they existed before coronavirus, recent changes to those laws, and how those changes might affect your business.
Employee Medical Leave Before COVID-19Previously, only businesses with 50 or more employees within a 75 mile radius were subject to the federal Family Medical Leave Act ("FMLA"). In Massachusetts, businesses with 11 or more employees were required to pay for accrued sick leave, but that leave was capped at 40 hours per year (one week for full time employees).
The FMLA, moreover, did not require any payment for leave. The central requirement of the FMLA was "job protected" leave. This means that an eligible employee could take up to 12 weeks of leave without losing their job. There was no requirement, however, that the employer pay for that leave. The 50-employee threshold provided an important protection for small businesses. Even without a requirement to pay for the leave, smaller businesses are more likely to struggle to cover someone's responsibilities for 12 weeks without hiring a replacement. Larger businesses, on the other hand, most often have more resources to do so. For obvious reasons, the unpaid leave under the FMLA also gave businesses more flexibility to deal with coverage issues if an employee was out for an extended period of time. Why COVID-19 Changed the RulesNeither the FMLA nor the Massachusetts Sick Time law clearly covered absences created by quarantine due to COVID-19. They also did not cover time lost for parents whose children's schools were closed, if nobody in the family were actually sick.
The incubation period for COVID-19, which can be as much as 14 days, is also out of step with the Massachusetts Sick Time law. Five days of protected leave simply did not cover the period of time an individual might need to be quarantined. COVID-19 also threatens economic disruption on a scale that we have not seen as it relates to an infectious disease. Providing workers with some kind of a safety net to cover them in the interim is an important policy objective recognized by Congress and state authorities. The other feature of this particular public health emergency is the immediate need to stop the spread of the virus. It is in the employer's interest as well as the interest of the community at large to encourage people who are symptomatic or exposed to stay out of circulation. Without emergency paid sick leave, workers who should be unable to work might still try to go to work, exposing more people to the virus. |
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Summary of the New Rules Under the FFCRA
Emergency Paid Sick Leave
The FFCRA requires all but the largest employers to provide 80 hours of emergency paid sick leave to employees affected by COVID-19. For a full time employee, this is two weeks. For part time employees, the total number of days or weeks will depend on their usual work schedule. For example, an employee who usually works 20 hours a week may get as much as 4 weeks sick leave under the Act.
Employees will be eligible for this leave if they are ill with COVID-19, if they are in actual or preventative quarantine, if they are caring for an individual who is ill, or if they are home with children whose school has been closed due to the virus.
Employers may not require their workers to exhaust existing sick leave before using the FFCRA emergency leave. In Massachusetts this means the FFCRA leave should be applied first without deducting from sick time accrued under the Massachusetts Sick Time law. It also means that if you have a policy that provides sick time, you should apply the FFCRA leave first before deducting from the accruals under that policy.
Payment for emergency sick leave is capped under the FFCRA at $511 per day, up to a maximum of $5,110 per employee in total. There are no similar limits under the Massachusetts Sick Time law, but the maximum leave required under that law is five days.
FMLA Expansion
The FFCRA's emergency provisions now apply to all businesses with 500 or fewer employees. This means that small businesses with fewer than 50 employees who have never had to worry about FMLA compliance before now have to take steps to ensure compliance.
The other key change is that the Act requires payment of 2/3 of the employee's regular pay during the leave period. This requirement kicks in after the first 10 days of absence, which are presumably covered by the emergency sick leave provisions. This required pay is capped at $200 per day per employee and a total of $10,000 per employee in total family leave payments.
The Act also makes clear that absence due to COVID-19, including quarantine or caring for children whose schools are closed, qualifies for FMLA emergency leave.
The emergency FMLA provisions do state that businesses with fewer than 50 employees may apply for an exemption from the leave requirements if compliance would threaten the viability of their business. The procedures for seeking this exemption, and the standard for getting the exemption, have yet to be spelled out.
Law Against Retaliation
Under pre-existing Massachusetts Sick Time law, employers are prohibited from taking adverse action against an employee for requesting or taking leave. The same is true under the FMLA. The FFCRA includes similar provision.
The FFCRA requires all but the largest employers to provide 80 hours of emergency paid sick leave to employees affected by COVID-19. For a full time employee, this is two weeks. For part time employees, the total number of days or weeks will depend on their usual work schedule. For example, an employee who usually works 20 hours a week may get as much as 4 weeks sick leave under the Act.
Employees will be eligible for this leave if they are ill with COVID-19, if they are in actual or preventative quarantine, if they are caring for an individual who is ill, or if they are home with children whose school has been closed due to the virus.
Employers may not require their workers to exhaust existing sick leave before using the FFCRA emergency leave. In Massachusetts this means the FFCRA leave should be applied first without deducting from sick time accrued under the Massachusetts Sick Time law. It also means that if you have a policy that provides sick time, you should apply the FFCRA leave first before deducting from the accruals under that policy.
Payment for emergency sick leave is capped under the FFCRA at $511 per day, up to a maximum of $5,110 per employee in total. There are no similar limits under the Massachusetts Sick Time law, but the maximum leave required under that law is five days.
FMLA Expansion
The FFCRA's emergency provisions now apply to all businesses with 500 or fewer employees. This means that small businesses with fewer than 50 employees who have never had to worry about FMLA compliance before now have to take steps to ensure compliance.
The other key change is that the Act requires payment of 2/3 of the employee's regular pay during the leave period. This requirement kicks in after the first 10 days of absence, which are presumably covered by the emergency sick leave provisions. This required pay is capped at $200 per day per employee and a total of $10,000 per employee in total family leave payments.
The Act also makes clear that absence due to COVID-19, including quarantine or caring for children whose schools are closed, qualifies for FMLA emergency leave.
The emergency FMLA provisions do state that businesses with fewer than 50 employees may apply for an exemption from the leave requirements if compliance would threaten the viability of their business. The procedures for seeking this exemption, and the standard for getting the exemption, have yet to be spelled out.
Law Against Retaliation
Under pre-existing Massachusetts Sick Time law, employers are prohibited from taking adverse action against an employee for requesting or taking leave. The same is true under the FMLA. The FFCRA includes similar provision.
What the FFCRA Means for Your Business
If you have an employee, part time or full time, who cannot go to work or work remotely due to the coronavirus, you will need to do the following:
At the same time, it is critical that people with potential exposure to the virus stay home to avoid the spread of the disease.
Depending on the products or services that you offer, you may be able to switch to a remote working structure. This way your employees who are not sick but still have to stay home can still be productive. You may still have to make leave payments for workers who actually get sick, but your exposure will be minimized.
If your business runs primarily on an in-person services model, this will present additional challenges. You may be able to get creative in some businesses by thinking of things of value you can deliver to your customers online or otherwise remotely.
There will, however, be things you cannot deliver without an in-person experience. If you are allowed to stay open during the pandemic, you would be well served to follow all protocols recommended by health officials to prevent and control the spread of the virus in your workplace.
- Offer paid sick leave up to 80 hours and $511 per day in payments, without deducting from sick time accrued under Massachusetts law or your employment policies.
- Offer additional leave as needed up to 12 weeks, with payment of 2/3 their regular pay, capped at $200 per day or $10,000 total family leave payments.
- Refrain from taking any adverse action against an employee for requesting or taking any leave under the Massachusetts Sick Time law or the FFCRA.
At the same time, it is critical that people with potential exposure to the virus stay home to avoid the spread of the disease.
Depending on the products or services that you offer, you may be able to switch to a remote working structure. This way your employees who are not sick but still have to stay home can still be productive. You may still have to make leave payments for workers who actually get sick, but your exposure will be minimized.
If your business runs primarily on an in-person services model, this will present additional challenges. You may be able to get creative in some businesses by thinking of things of value you can deliver to your customers online or otherwise remotely.
There will, however, be things you cannot deliver without an in-person experience. If you are allowed to stay open during the pandemic, you would be well served to follow all protocols recommended by health officials to prevent and control the spread of the virus in your workplace.
Should You Consider Layoffs?
You may also have to consider the pros and cons of temporary layoffs during the crisis. This is not a decision that any employer should make lightly. However, other emergency legislation and rule making at the state and federal level has made it easier for your staff to collect unemployment benefits during the crisis. If you are a covered employer under the FFCRA, this may be the decision that best serves both your business and your employees.
If you make that difficult decision, remember that all of the old rules about employment termination in Massachusetts still apply. You can review our termination best practices here.
If you make that difficult decision, remember that all of the old rules about employment termination in Massachusetts still apply. You can review our termination best practices here.
How Can We Help?
We can help answer your specific questions about managing this COVID-19 crisis. We routinely conduct consultations and meetings by phone or video-conference, so you can reach out without increasing your exposure to the virus. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
