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March 23, 2020

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) was emergency legislation passed by Congress and signed into law by the President on March 18, 2020 as a response to the COVID-19 pandemic.  The FFCRA emergency legislation, in part, provides for expanded paid employee family and medical leave necessitated due to the pandemic.  The FFCRA goes into effect April 2, 2020, and most provisions are set to expire on December 31, 2020.  The parts of the legislation most directly addressing mandated employee leave are summarized below. 

Emergency Paid Sick Leave Act (EPSLA)

Employers Covered by the Act: Generally, all private employers with fewer than 500 employees.
Eligible Employees: All employees, regardless of how long the employee has been employed by an employer.
Required Leave: Eligible employees who are unable to work (or telework) due to a COVID-19 related need for leave are entitled to paid sick time under the Act.  An employer is required to provide paid sick time to an employee for any of the following reasons:

  1. The employee is subject to a federal, state, or local quarantine; 
  2. The employee has been advised by a health care provider to self-quarantine; 
  3. The employee is experiencing symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a quarantine or has been advised by a health care provider to self-quarantine; 
  5. The employee is caring for their child under age 18 if the school or place of care of the child has been closed or unavailable; or
  6. 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.

Amount of Paid Sick Time: 

  •  Full-time employees are entitled to up to 80 hours of paid sick time.  Part-time employees are entitled to the number of hours, on average, that the employee works over a 2-week period.
  • The paid sick time under the Act shall be available for immediate use by the employee and may be used before using any other accrued paid leave that the employee has.  The employer may not require an employee to use other paid leave first. 
  •  The amount for paid sick time is calculated based upon the employee’s required compensation and the number of hours they are normally scheduled to work.  The amount shall not exceed $511/day or $5,110 in the aggregate if the leave is taken for reasons 1, 2, or 3 above; and shall not exceed $200/day or $2,000 in the aggregate if the leave is taken for reasons 4, 5, or 6 above.  
  • Paid sick time is compensated at the greater of the employee’s regular rate, the federal minimum wage rate, or any applicable state/local minimum wage rate (note that Maryland minimum wage is higher than the federal minimum wage). If paid sick time is used for reasons 4, 5, or 6 above, the compensation may be 2/3 of the rate.

Miscellaneous:

  • Employers cannot discharge, discipline, or discriminate against employees who take leave. 
  • Employers may not change their existing leave policies to try and avoid compliance with the emergency legislation.
  • The Secretary of Labor will be preparing a notice that must be conspicuously posted at the employer’s place(s) of business where they normally post such notices.  Employers will also be required to retain records for three years.
  • The FFCRA provides for tax credits to employers who must provide leave under the Act.

Emergency Family and Medical Leave Expansion Act 

In addition to the paid leave required by the EPSLA, all employees who have been employed for at least 30 days and who are unable to work (or telework) due to a need to care for their child under 18 because the child’s school or place of care is closed or unavailable due to the COVID-19 public health emergency are entitled to take up to 12 weeks’ leave, as follows: 

  •  For the first 10 days for which an employee takes leave, the leave can be unpaid, but the employee may elect to substitute any accrued leave.
  • After the first 10 days, the employer shall provide paid leave.  The amount of paid leave shall be not-less than 2/3 of the employee’s regular rate of pay based upon the number of hours the employee would otherwise be scheduled to work.  The paid leave shall not exceed $200/day and $10,000 in the aggregate.

Where providing advance notice is foreseeable, an employee must provide leave notice to the extent practicable.  Returning employees are generally entitled to the same right to be restored to their position up return as is set forth in the FMLA; however, under certain circumstances, an employer with less than 25 employees may be exempted from this restriction.

If you have questions, we are here to help.  Please contact Brett A. Buckwalter, Esquire, at babuckwalter@nilesbarton.com.  
 

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