Through the end of August there were at least 72 lawsuits filed against employers alleging violations of the Families First Coronavirus Response Act (FFCRA). In most of these cases, employees allege they were unlawfully fired after they contracted the virus or requested leave for one of the reasons protected by the FFCRA. In a few cases, employees say they were granted leave, but it was unpaid, and thus seek payment and other damages.
As a refresher, the FFCRA requires certain employers with fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19, which are subject to a corresponding tax credit. Generally speaking, and subject to certain exceptions, employers covered under the Act must provide employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave, at full pay (up to a $511 per day) if they are subject to a quarantine order related to COVID-19, have been advised by a healthcare provider to self-quarantine related to COVID-19, or are experiencing symptoms related to COVID-19. The Act also provides for up to two weeks of paid sick leave at two-thirds pay (up to $200 per day) to employees if they are caring for an individual who is subject to a quarantine order or has been advised by a healthcare provider to self-quarantine, and up to 12 weeks of paid sick leave and expanded FMLA leave at two-thirds pay (up to $200 per day) if they are caring for a child whose school or place of care is closed due to COVID-19-related reasons.
The Act was hurriedly passed and became law on March 18, with an effective date of April 1, just two weeks later. The Department of Labor (DOL) scrambled to draft regulations, which were not issued until the afternoon the law went into effect. This left employers little time to understand their obligations and implement policies and procedures to comply. Subsequent court challenges have created further compliance concerns. On September 16, DOL published revised regulations in response to a New York court ruling. Simply put, this law has created a lot of questions and uncertainties for employers.
Employers need to stay on top of the latest legal developments, err on the side of caution, be flexible with workers who request leave, document leave requests, and get help from legal counsel when needed to ensure compliance.
