On March 18, 2020, the president signed into law the Families First Coronavirus Response Act (FFCRA). Among other things, the new law provides for paid sick leave and expanded FMLA provisions. The FFCRA takes effect on April 1, 2020, and sunsets on December 31, 2020.

As it relates to the expanded FMLA provisions, and specifically with respect to the COVID-19 public health emergency, the FFCRA modifies the definition of eligible employee to include employees who have been employed for at least 30 calendar days. The new law applies to employers with fewer than 500 employees (with some possible exceptions for certain health care providers and emergency responders and for employers with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern).  To this effect, the FFCRA provides that eligible employees who are unable to work as a result of the closure of their child’s school, nursery, or childcare center is entitled to up to 12 weeks of job-protected FMLA leave.  The first 10 days this leave is unpaid, but the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.  The remaining balance of the 12 weeks will be paid at two-thirds their regular pay with a cap of $200 per day and $10,000 in the aggregate. 

In addition, the FFCRA includes an Emergency Paid Sick Leave provision, which also applies to employers with fewer than 500 employees (with the same possible exceptions applicable to the FMLA extension provisions), except that employees need not have worked for the employer for any particular amount of time to qualify for this benefit.  It provides that eligible employees who cannot work as a result of one of the following three qualifying reasons is entitled to 10 days (80 hours) of paid sick leave at their regular rate of pay, with a cap of $511 per day. 

• the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• the employee has been advised by a health care provider to self-quarantine because of COVID-19; or
• employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

Alternatively, employees unable to work because of the following three reasons, are entitled to $200 per day ($2,000 in the aggregate):

• the employee is caring for an individual subject or advised to quarantine or self-isolate by a federal, state or local order or healthcare provider in relation to COVID-19;
• the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
• the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Employers will be able to offset payments made under the expanded FMLA provisions and the Emergency Paid Sick Leave Act through refundable tax credits against their employer portion of Social Security taxes under Section 3111(a) of the Internal Revenue Code. 

Within 7 days of the date of the Act’s enactment (that is, by March 25, 2020), the Secretary of Labor shall make available a model of the notice of the requirements of the Act that employers shall post and keep posted, in conspicuous places on the premises where notices to employees are customarily posted.

Within 15 days after the date of enactment (that is, by April 1, 2020), the Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time.

Importantly, the benefits provided for by the FFCRA are in addition to any benefits under state law or voluntarily provided by an employer pursuant to its policies.  Therefore, the emergency paid sick leave described above is in addition to the statutory sick leave benefit and applicable vacation leave to which Puerto Rico non-exempt employees are entitled to under the Minimum Wage, Vacation, and Sick Leave Act, Act No. 180 of July 27, 1998, as amended,¹ or, alternatively, to any other similar benefit voluntarily provided under an employer’s policy to either exempt or non-exempt employees. Furthermore, the FFCRA provides that it is the employee’s prerogative (not the employer’s) to decide whether they wish to use Emergency Paid Sick Leave before or after any other leave they may be entitled to.

Employers must bear in mind that the FFCRA will not come into effect until April 1, 2020, and that they must wait until then to extend the new benefits to their employees in order to be able to claim the tax credits.  While the shutdown currently in effect in Puerto Rico pursuant to Executive Order 2020-023, could, depending on the particular circumstances of the employee, qualify as a triggering event for both the expanded FMLA leave and the Emergency Paid Sick Leave, any such entitlement would not begin to accrue until then.  

There are many questions that continue to arise in this rapidly changing legal landscape.  Littler will be conducting a complimentary webinar on the new FMLA and paid sick provisions of the FFCRA on Tuesday, March 24, 2020. Click here for more information on how to register, or contact your Littler attorney.