• Salomon Smith

Don’t be a Fool by Forgetting to Make a Claim under the Families First Coronavirus Response Act



Not only is April 1, 2020 April Fool’s Day, but it is also the effective date for the Families First Coronavirus Response Act (“FFCRA”), an important set of new laws aimed at providing monetary relief for people who cannot work because they or their family members are impacted by the Coronavirus. If an employee covered by the FFCRA cannot work (or telework) because of any of 6 different reasons, they will qualify for up to 80-hours of paid sick leave, and/or up to an additional 10 weeks of paid leave where an employee is unable to work due to a need to care for a child whose school or child care provider is closed or unavailable to the Coronavirus. Basically, the United States government is providing financial compensation to certain workers by expanding and creating new ways for certain workers to get paid sick leave if they or their families were impacted by the novel Coronavirus, also referred to as Covid-19. Employers are prohibited from discriminating or retaliating against employees who exercise these rights. Daniel Smith, Founding Attorney of Salomon Smith PLLC (https://salomonsmith.com/contact/), examines some of the key portions of the FFCRA below.

Qualifications for Leave:

To confirm whether an employee is entitled to paid leave under the FFCRA, one must work for a “covered employer[1]” with fewer than 500 employees and have 1 of 6 qualifying reasons for leave. Specifically, under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

  2. has been advised by a health care provider to self-quarantine related to COVID-19;

  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Duration of Leave and Calculation of Pay:

Generally, if a full-time worker falls into categories (1)-(4) and (6), he/she is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Importantly, an employee in category (5) qualifies for expanded family leave (of up to 12 weeks total) if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to Covid-19. Part-time workers falling into category (5) are eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

With respect to calculation of pay, employees taking leave for reasons (1), (2), or (3) are eligible for up to $5,110 (over a 2-week period), employees taking leave for reasons (4) or (6) are eligible for up to $2,000 (over a 2-week period), and employees taking leave for reason (5) is eligible for up to $12,000 (over a 12-week period- two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

Civil Remedies:

If an employer violates the FFCRA, a victimized employee can bring an action or lawsuit to recover their paid leave, or for discrimination or retaliation against an employee, like firing them, for exercising their legal rights. In particular, an employer’s violation of the first two weeks paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties of the Fair Labor Standards Act. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. Notably, the Department of Labor is giving employers a 30-day grace period of non-enforcement after the April 1, 2020 effective date.

Conclusion:

Remember to exercise your rights and take action if you are an employee who cannot work because of any of the 6 Coronavirus-related scenarios described above. It is illegal for a covered employer to discriminate or retaliate against an employee for making a claim for paid sick leave under the FFCRA. If you are unsure or think your employer may not be compliant with this new law, you should consult with legal counsel experienced in handling employment claims, like Salomon Smith PLLC (www.salomonsmith.com).

Daniel Smith is the Founding Attorney of Salomon Smith PLLC, based in Miami-Dade County, Florida. Mr. Smith is experienced in handling employment related matters and represents both individuals and businesses in employment-related claims. He can be reached at Daniel@salomonsmith.com or 305-297-1018.

[1] This is a statutorily defined term with exemptions, including one carve-out for employers of less than 50 people. Although this article focuses on the perspective of the employee, the government has passed even more legislation impacting employers, including tax breaks and forgiveness on loans for payroll and other crucial expenses.

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