By Sarah Everhart
This article is not a substitute for legal advice. See here for the site’s reposting policy.
The COVID-19 pandemic has brought about countless changes to the way we live, work, and play and one change that agricultural employers need to take note of is the new legal requirement, in certain circumstances, to provide workers with paid sick leave. The recently passed Families First Coronavirus Response Act (FFCRA) requires employers to provide paid leave through two separate provisions: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (Expanded FMLA). These provisions will be in effect from April 1, 2020 through December 31, 2020. In this post, I will outline the situations in which paid leave is required and explain the partial exemption for businesses with less than 50 employees who can prove that compliance with these Acts would jeopardize their business.
Emergency Paid Sick Leave Act (EPSLA)
The EPSLA requires private employers with fewer than 500 employees to provide paid sick leave where an employee is unable to work (or telework) because the employee :
Is subject to a federal, State, or local quarantine or isolation order related to COVID-19; (according to the U.S. Department of Labor (DOL) quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. To take leave for this reason, however, the order must make the employee “unable to work even though his or her Employer has work that the Employee could perform but for the order.” If “as a result of the order or other circumstances” the employer does not have work for the employee due to lack of business due to a stay-at-home order – the employee may not take emergency paid sick leave.)
Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
Is caring for an individual subject to an order described in (1) or has been advised as described in (2);
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
Is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Full-time eligible employees are entitled to receive two weeks of paid sick leave, up to 80 hours. Part-time employees are entitled to sick leave in an amount equal to the average number of hours they typically work in a two-week period. For reasons 1, 2 and 3 (above), employees will receive paid sick leave at their regular rate (100%), the amount paid cannot exceed $511 per day and $5,110 in total. For reasons 4, 5 and 6 (above), employees will receive paid sick leave at two-thirds (2/3) of their regular rate (the amount paid cannot exceed $200 per day and $2,000 total).
The paid sick time must be available for immediate use by the employee, regardless of how long the employee has been employed by an employer. Employers cannot require employees to use other paid leave before taking advantage of the sick leave provided by the Act.
Emergency Family and Medical Leave Expansion Act (Expanded FMLA)
FMLA generally entitles employees of covered employers to unpaid, job-protected leave for specified family and medical reasons. Most agricultural employers are not accustomed to being subject to FMLA because it normally only applies to employers of 50 or more employees. This newly passed Expanded FMLA, however, applies to a larger set of employers and employees, namely those with 500 or fewer employees.
The FFCRA amended the FMLA to require an employer to provide qualified family leave wages when an employee is unable to work (or telework) due to a need to care for a child of the employee if the child’s school or place of care has been closed or because the child’s care provider is unavailable for reasons related to COVID-19. The first ten days for which an employee takes leave, for this reason, may be unpaid. However, during that 10-day period, an employee may be entitled to receive qualified sick leave wages as provided under the ESPLA or may receive other forms of paid leave, such as accrued sick leave, annual leave, or other paid time off under the employer’s policy.
After an employee takes leave for ten days, the employer must provide the employee with family leave wages for up to 10 weeks. This expanded family leave wage is equal to two-thirds (2/3) of the employee’s regular pay, up to $200 per day and $10,000 in the aggregate. To be eligible for this leave the employee has to have been employed for at least 30 days.
How do EPSLA and Expanded FMLA function together?
If an employee must care for his or her child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, the employee is entitled to qualified sick leave wages (those authorized by EPSLA) for the first 80 hours and thereafter entitled to family leave wages (those authorized by Expanded FMLA) for up to an additional 10 weeks.
Refundable Payroll Tax Credits
Employers may claim payroll tax credits for leave wages paid to employees taking EPSLA paid sick leave or Expanded FMLA leave between April 1, 2020 and December 31, 2020. Employers can claim the credits on their federal employment tax returns (e.g., Form 941, Employer’s Quarterly Federal Tax Return), but they can benefit more quickly from the credits by reducing their federal employment tax deposits. Employers are entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period. Check out the following IRS web pages for more information about the tax credits and specifically how to claim the credits.
Small Business Exemption
Employers with fewer than 50 employees are eligible for an exemption from the requirements of EPSLA and Expanded FMLA to provide leave to care for a child whose school is closed or child care is unavailable when such leave would jeopardize the viability of the business as a going concern.
In newly published temporary regulations (29 CFR 826.40(b)(1)), the DOL set forth objective criteria for this exemption. The regulation provides:
“A small employer is exempt from the requirement to provide such leave when:
such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.”
Section 826.40(b)(2) further explains that if a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose child care provider is unavailable, the small employer must document the facts and circumstances that meet the criteria set forth in Section 826.40(b)(1) to justify such denial.
Employer Obligation to Notify Employees
Employers subject to these laws must post and distribute the DOL poster to all employees by April 1. An employer may satisfy this requirement by emailing or direct mailing the poster to all employees or posting this notice on an employee information internal or external website.
An employee must provide his or her employer documentation in support of paid sick leave or expanded family leave. According to 29 CFR § 826.100, such documentation must include a signed statement containing the following information:
(1) the employee’s name;
(2) the date(s) for which leave is requested;
(3) the COVID-19 qualifying reason for leave; and
(4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave, for more information see pages 50-51. Employers are required to retain all documentation related to this subject for four years, regardless of whether leave was granted or denied. In addition, if an employee provides oral statements to support their leave request, the employer is required to reduce the statement to writing and maintain this information for four years.