May June 20 Report

T he Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020 and will end on December 31, 2020. The law requires almost all employers with fewer than 500 employees to provide “emergency paid sick leave” and expanded Family and Medical Leave for a “public health emer- gency,” which allows for certain employer tax credits. The law provides additional rights for employees and obligations for employers. Who are covered employers? The FFCRA applies to private employers with fewer than 500 employees and covered public employers. There are limited exceptions for employers with fewer than 50 employees for leave due to school closures or child care provider unavailability due to COVID- 19, if doing so would jeopardize the viability of the small business as a going concern. Employers employing health care providers or emergency responders may elect to exclude those employees from this leave. Who are eligible employees? The Emergency Family and Medical Leave Expansion Act (EFMLEA) would be available to any employee employed for 30 calendar days and for the Emer- gency Paid Sick Leave Act (EPSLA), all employees qualify, regardless of their length of employment. When can employees utilize EPSLA benefits? The FFCRA provides emergency paid sick leave if the employee is unable to work (or telework) because the employee: 1. Is subject to a federal, state or local quarantine or isolation order; 2. Has been advised by a health care provider to self-quarantine; 3. Is experiencing symptoms of COVID-19 and is seeking a diagnosis; 4. Is caring for an individual covered by (1) or (2) above; 5. Is caring for a son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions; or 6. Is experiencing any other substantially similar condition specified by the Secre- tary of Health and Human Services. What are the EPSLA benefits? Full-time employees are entitled to 80 hours of emergency paid sick leave, capped at $511 per day ($5,110 total) when the employee is absent for eligible reasons related to his/her own circumstances or capped at $200 per day ($2,000 total) for reasons related to eligible care for another person. Part-time employees are enti- tled to receive a proportionately similar amount of leave based on their average hours worked in a two-week period. What events trigger EFMLEA? The EFMLEA covers eligible employees who must care for a minor child because of a COVID-19-related school closure or childcare provider loss if the employee is unable to work from home or telework. Employees who become ill with COVID- 19, or are caring for family members who have COVID-19, may still be covered by the FMLA original unpaid “serious health condition” provision. Is EFMLEA leave paid? The first 10 days of leave are unpaid. For the final 10 weeks, employees receive up to two-thirds (2/3) of their regular rate of pay, with payments capped at $200 per day and $10,000 in the aggregate ($12,000 in the aggregate if emergency paid sick leave is utilized). Are employees eligible for leave if the employee is furloughed? If an employee is furloughed, he/she does not qualify for EPSLA or EFMLEA benefits, but he/she may be eligible for unemployment insurance benefits. Are employees eligible for leave if the employer closes a worksite? If an employer closes a worksite due to lack of business or because it is required to pursuant to a local, state, or federal direc- tive, the employees are not entitled to FFCRA paid leave benefits. The employee may be eligible for unemployment insur- ance benefits. Are there other obligations in implementing these benefits? The FFCRA mandates certain notice and record keeping requirements for covered employers. The FFCRA also prohibits employers from disciplining, discharging, or otherwise discrimi- ninating against any employee who takes leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA. This article provides a very high- level summary of the FFCRA EPSLA and EFMLEA and is not inclusive of all aspects of the law relating to employees and employers. Please consult an employ- ment attorney in the CBA’s Labor and Employment Law Practice Group for more information. Faith C. Whittaker is a partner with Dinsmore & Shohl and chair of its employment practices group, with significant experience in counseling and litigation in all facets of employment law. Whittaker serves as trustee for the Cincinnati Ballet, trustee for the CBA and chairs the CBA Employment Law Practice Group. She co-founded and co-chairs the Dinsmore Cincinnati Women’s Initiative and is a graduate of the Cincinnati Academy of Leadership for Lawyers (CALL) program. Families First Coronavirus Response Act By Faith C. Whittaker Need-To-Knows www.CincyBar.org May/June 2020 CBA REPORT l 11 Feature Article