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The Families First Coronavirus Response Act (CARES Act) requires that employers permit their employees to have paid leave in certain circumstances related to the COVID-19 pandemic.  While the FFCRA is mandatory for qualifying businesses, the burden of this law is offset because employers receive a dollar-for-dollar tax credit for the wages paid pursuant to the act. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims in South Florida. Such claims in include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The CARES Act amended the Family Medical Leave Act (FMLA) to require employers to permit their employees to take paid leave in certain situations.  While the FMLA normally only applies to employers of at least 50 employees, the CARES Act applies to employers of “fewer than 500 employees.”  29 U.S.C. § 2620(a)(1)(B).  Employers of fewer than 50 employees may be exempt “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  29 U.S.C. § 2620 (a)(3)(B).  Such an employer may be exempt if the enforcement of the act would cause a business to no longer have positive cash flow or there are not sufficient workers to operate the business at a minimal capacity.  29 C.F.R. § 826.40.  The requirements for paid leave expire December 31, 2020, though the statute may be amended depending on the state of the pandemic as this deadline approaches.  29 U.S.C. § 2612 (a)(1)(F).

Generally, under this employment law, employers must provide paid leave to covered employees who are unable to work for particular COVID-19 related reasons.  To qualify, an employee must be employed for at least the previous 30 calendar days.  29 U.S.C. § 2620(a)(1)(A)(i).  There are two types of paid leave under the FFCRA.  The first is for employees that cannot work because he or she actually has or may have COVID-19.  This leave is limited to two weeks.  The second is for employees that cannot work because childcare facilities are not open.  These employees are permitted up to twelve weeks of paid leave.

An employee qualifies for paid leave to the extent that he or she is subject to a quarantine order because of COVID-19, has been directed to isolate by a medical professional because of COVID-19 reasons, or is experiencing COVID-19 symptoms and is seeking medical diagnosis.  29 C.F.R. § 826.20 (a)(1)(i)-(iii).  An employee that simply elected to quarantine himself because of COVID-19 symptoms but does not actually use that time to acquire a diagnosis is not entitled to leave.  29 C.F.R. § 826.20 (a)(4)(v) (“Any Paid Sick Leave taken for [to be diagnosed] is limited to time the Employee is unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID–19”).  An employee who takes leave because of sickness shall be paid his or her regular rate of pay, 29 C.F.R. § 826.22 (a), for the initial eighty hours 29 C.F.R. § 826.21 (a)(1)(“A full-time Employee is entitled to up to 80 hours of Paid Sick Leave”).

Additionally, an employee qualifies for leave if he or she is caring for a child because of a school closure.  29 C.F.R. § 826.20 (a)(1)(v) (“Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID–19”).  Such an employee must be paid at least 2/3 of their regular rate of pay during this time period.  29 C.F.R. § 826.22 (b).  The employee may take a maximum of 12 weeks of this kind of paid leave.  29 C.F.R. § 826.60 (a).

An employee is not entitled to leave for childcare reasons if he or she could work remotely, or, if the employer would not have work for the employee to do had there been no condition qualifying the employee for leave.  29 U.S.C. § 2620(2)(A) (“The term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency”); 29 C.F.R. § 826.20(a)(6) (“An Employee may not take Paid Sick Leave for the reason described in paragraph (a)(1)(iv) of this section unless, but for a need to care for an individual, the Employee would be able to perform work for his or her Employer, either at the Employee’s normal workplace or by Telework”).

An employee must generally take the leave granted by the CARES Act all at once.  An employee who is taking leave because of childcare related reasons may agree with an employer to take intermittent leave. 29 C.F.R. § 826.50 (a) (“An Employee may take Paid Sick Leave or Expanded Family and Medical Leave intermittently [i.e., in separate periods of time, rather than one continuous period] only if the Employer and Employee agree […]” and only to care for a child).  The intention of this rule is to allow an employee some flexibility to work at times when childcare does not prevent the employee from working.  Because this provision requires employer consent, the employee cannot force the employer to kowtow around the employee’s schedule.

To avoid liability for an employment lawsuit under the CARES Act, an employee who returns to work must generally be restored to his or her former position as if leave had not been taken.  29 U.S.C. § 2614 (a)(1)(A)-(B).  The requirement to restore an employer to his or her former position is relaxed for employers of less than 25 employees when certain conditions are met.  29 U.S.C. § 2620 (d).

This article is not intended as an exhaustive guide to employer’s obligations relating to COVID-19 related sick leave requirements.  There are other limitations to this act which may apply.  For example, an employer is not obligated to pay more than $200 per day to any employee or more than $10,000 for the all of the leave that an employee takes after two weeks of leave have been incurred.  29 C.F.R. § 826.24 (a).

The FFCRA helps employers retain their employees during periods which they are unable to work because of the COVID-19 pandemic by allowing employers to take a tax credit for every dollar spent on qualifying leave.  The FFCRA’s leave is mandatory for most businesses, but businesses with fewer than 50 employees may qualify for an exemption from the law.  Peter Mavrick is a Fort Lauderdale employment lawyer who also defends employers in Miami and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation. This article does not serve as a substitute for legal advice tailored to a particular situation.

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