By MAURA MAZUROWSKI and DAVID DONOVAN
The U.S. government has taken an unprecedented step in response to the COVID-19 public health crisis, passing the first ever paid sick leave law in the nation’s history. Now attorneys have to quickly figure out how best to advise their clients on what, exactly, the new law requires.
The Families First Coronavirus Response Act, or FFCRA, which became law on March 18, provides many workers with paid sick leave if they need to take time off work because of COVID-19, along with free testing and expanded unemployment benefits.
The law, which is more than 100 pages, went through the entire legislative and executive processes in just five days. Its quick turnaround has thus ignited a flurry of activity for both employment law attorneys and for the U.S. Department of Labor, which has been tasked with writing the regulations connected to the new law.
The two types of leave
The sick leave component of the FFCRA is broken down into two parts, an expansion of the Family Medical Leave Act and a new emergency paid sick leave law.
The FMLA expansion has several key provisions. First, it waives the typical eligibility requirement that an employee needs to have been employed by their current employer for at least a year and have worked 1250 hours in the last 12 months, instead making employees eligible after just 30 days of employment. Second, it allows employees to take up to 12 weeks of job-protected leave if they’re unable to work because they need to care for children whose schools have closed because of COVID-19.
The first ten days of that leave can be unpaid, but after that employees must be paid at least two-thirds of their regular pay, up to $200 a day. (Private employers will be eligible for refundable tax credits for 100 percent of the cost of complying with the law.) Unlike the rest of the FMLA, the new provision applies to companies with fewer than 500 employees, although the DOL will have the power to exempt employers with fewer than 50 employees, and health care providers, from the expansion.
Meanwhile, the paid sick leave component requires private employers with fewer than 500 employees, and some public sector employers, to provide paid sick leave to any employee who is unable to work because they:
- are subjected to a government-mandated quarantine or isolation order related to COVID-19,
- have been instructed by a health care provider to self-quarantine because of concerns related to the virus,
- are experiencing symptoms of the coronavirus and seeking a medical diagnosis,
- are caring for a child because the school or place of care has been closed or the child care provider is unavailable because of COVID-19 precautions, or
- are experiencing any other substantially similar condition specified by the Department of Health and Human Services.
Benefits are capped at $511 per day when sick leave is used for any of the first three reasons and $200 per day when used for either of the last two reasons. Full-time employees are entitled to ten days (80 hours) of leave, while part-time employees are entitled to leave equivalent to the number of hours they would work in a typical two-week period. Companies will be eligible for refundable tax credits for 100 percent of the cost of complying with this portion of the law as well.
There’s no looking back
The new law provides substantial relief, then, for employees, but attorneys pointed out that it nevertheless contains a number of gaps. For one, the law will be effective April 2 through Dec. 31, and no look-back provision has been enacted, so workers and their employers won’t be compensated for time they missed due to the virus before April 2, by which time the virus had already spread extensively throughout the country.
Second, the law excludes companies with more than 500 employees, which employ almost half of America’s workforce. Employees are also not eligible for paid leave if they’ve been instructed to quarantine by their employer, perhaps because they’re returning from overseas, for instance.
Tiffani Greene, an attorney with Fisher Phillips in Charlotte who represents employers and is part of the national COVID-19 task force that the firm has created in response to the crisis, noted that the DOL has clarified that the law also doesn’t apply to employees who work for businesses that have had to cease operations as a result of the virus (although those workers will be able to get some relief from the parts of the law related to unemployment insurance).
“This is really geared toward businesses that are up and running and are really trying and able to stay as close to normal as possible,” Greene said.
Andy Arnold, an employment law attorney in Greenville, South Carolina, who mostly represents employees, said that he’s currently representing a client who has an autoimmune disease that places the client at a heightened risk should they contract the virus. Neither component of the new law provides any protection for an employee in that position, he noted.
“There are certainly employees who will benefit by these provisions,” Arnold said. “It’s hard to guess who falls through what crack, but it certainly provides benefits for those who are otherwise going to be unable to work because of some of the effects of the pandemic.”
On the other hand, the new law provides unprecedented coverage for part-time workers, who typically aren’t entitled to protection under the FMLA. The self-employed will also be eligible for both types of refundable tax credits. It bears reminding at this point that law firms are also employers themselves, and many lawyers and their support staff will no doubt find themselves being directly affected by the virus and perhaps needing to avail themselves of the law’s protections.
But there is looking ahead
Attorneys face multiple challenges as they try to advise clients on what the law means for them. Obviously, there’s no case law interpreting the statute, and as currently written, the law would expire before any body of case law could be developed. Compounding matters further, attorneys are still waiting for the DOL to provide the regulations that will clarify the language in the law.
“The regulations usually add a little meat to the bone and answer some of these questions, and we don’t really have the benefit of that yet, in addition to there not being any case law,” Arnold said. “You’re just trying to do the best you can to give clients the best counsel you can based on the information that you have … You may have employees working for employers across the street from each other who may be treated differently, and not in bad faith, but just because of differences of opinion about what the language means.”
Greene noted that the DOL has already started to issue some guidance. Attorneys are already spending parts of some mornings poring over new updates or guidance that DOL has published the night before.
“It is evolving every day, and the nuances that are involved are pretty extensive,” Green said. “I think it’s evolving because every day employers are asking for more and more clarification on what something means. You have to be really diligent to keep up with the amount of changes that are happening. Truly we are getting more guidance on a daily basis.”
The paid sick leave provision expires on Dec. 31, even though currently no expiration date has been identified for the coronavirus. But some states already had paid sick leave laws, and securing the passage of a federal paid sick leave had already been a significant priority for labor advocates, so while the FFCRA is temporary, it may very well have a lasting effect on the debate over sick leave laws.
“This is historic that the federal government is mandating paid leave,” said Paul Beers, a litigator in Roanoke, Virginia. “My guess is even after this virus ends, there will be more congressional interest in establishing family leave.”
Follow David Donovan on Twitter @NCLWDonovan