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WHAT EMPLOYERS NEED TO KNOW ABOUT THEIR NEW FMLA OBLIGATIONS UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Posted by John Kreamer | Mar 24, 2020 | 0 Comments

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On Wednesday, March 18, 2020, Democrat House Bill 6201 became law. Democrat House Bill 6201 is formally referred to as the Families First Coronavirus Response Act (FFCRA). FFRCA guarantees free coronavirus testing, establishes paid leave, enhances Unemployment Insurance, expands food security initiatives, and increases federal Medicaid funding.

The FFCRA requires small employers to provide at least two weeks of paid sick leave to many of those affected by the coronavirus. Businesses with fewer than 500 employees must provide two weeks of paid leave, with an additional 10 weeks of leave at two-thirds pay for their workers.  Businesses with fewer than 50 employees could secure an exemption with the Secretary of Labor, if the imposition of these requirements would jeopardize the viability of the business as a going concern. Additionally, emergency responders and health-care providers might be ineligible if the Labor Secretary decides against allowing them leave during a crisis. 

Those in quarantine, those caring for stricken family members and those who have children whose schools or day-care centers have closed would be eligible for the initial two weeks of paid leave. Smaller business would also have to pay an additional 10 weeks of leave at two-thirds pay for people who have lost their care because of school and day-care closures.

APPLICABLE SECTIONS WITH EXAMPLES OF FFCRA LEGILSATION FOR EMPLOYERS:

Division C – Emergency Family and Medical Leave Expansion Act. 

Section 3101. Short Title. The short title for the bill is the Emergency Family and Medical Leave Expansion Act. 

Section 3102.  Amendments to the Family and Medical Leave Act of 1993. This section provides employees of employers with fewer than 500 employees and government workers, who have been on the job for at least 30 days, with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act to be used for any of the following reasons: (a) To adhere to a requirement or recommendation to quarantines due to exposure to or symptoms of coronavirus; (b)  To care for an at-risk family members who is adhering to a requirement or recommendation to quarantines due to exposure to or symptoms of coronavirus; and (c) To care for a child of an employee if the child's school or place of care has been closed, or the child-care provider is unavailable, due to a coronavirus. After two weeks of paid leave, employees will receive a benefit from their employers that will be no less than two-thirds of the employee's usual pay. 

Section 3103. Employment Under Multi-Employer Bargaining Agreements. This bill ensures employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan are provided with leave. 

Section 3104.  Effective Date. This Act takes effect not later than 15 days after the date of bill's enactment.   

Application of the FFRCA on Employers

ACME Corp. employs 500 employees in two states.   ACME Corp. employs 460 workers (within 75 miles of each other) in Illinois and 40  additional employees work (within 75 miles of each other) in Indiana?

ANSWER:  ACME Corp. is subject to the FFCRA.  Based on the number of employees employed by the Client in both Illinois (460 employees at Illinois worksites within 75 miles of each other) and Indiana (40 employees at Indiana worksites within 75 miles of each other), the FFCRA would apply.  The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. See §825.111 of the Federal Code of Federal Regulations. 

However, under the FFRCA it would be possible for the Client to seek an exemption from the United States Labor Department for its Florida base of operations since the total number of Florida employees is under 50. 

Applicable Code of Federal Regulation Impacting ACME CORP. 

CALCULATION OF EMPLOYEES UNDER FMLA:  A private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar weeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year.  §825.105 of the Code or Federal Regulations.

DETERMINING WHETHER 50 EMPLOYEES ARE EMPLOYED WITHIN 75 MILES:(a) Generally, a worksite can refer to either a single location or a group of contiguous locations. Structures which form a campus or industrial park, or separate facilities in proximity with one another, may be considered a single site of employment. On the other hand, there may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within the building. For example, an office building with 50 different businesses as tenants will contain 50 sites of employment. The offices of each employer will be considered separate sites of employment for purposes of FMLA. An employee's worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee's work is assigned.

(1) Separate buildings or areas which are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages a number of warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.

(2) For employees with no fixed worksite, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company's on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey. For transportation employees, their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment. For example, an airline pilot may work for an airline with headquarters in New York, but the pilot regularly reports for duty and originates or begins flights from the company's facilities located in an airport in Chicago and returns to Chicago at the completion of one or more flights to go off duty. The pilot's worksite is the facility in Chicago. An employee's personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

(3) For purposes of determining that employee's eligibility, when an employee is jointly employed by two or more employers (see §825.106), the employee's worksite is the primary employer's office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee's worksite is that location. The employee is also counted by the secondary employer to determine eligibility for the secondary employer's full-time or permanent employees.

(b) The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).

(c) The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. Employees of educational institutions who are employed permanently or who are under contract are maintained on the payroll during any portion of the year when school is not in session. See §825.111 of the Federal Code of Federal Regulations. 

At Kreamer Law Group, LLC we know this can be very confusing and we are committed to answering your questions and helping you  resolve your employment matters with the highest quality of legal service and professionalism. From our law office in Naperville, IL we serve clients throughout the State of Illinois and in Federal courts across the nation. For a no obligation free consultation, please call John Kreamer at 630-995-3668.

About the Author

John Kreamer

John Christopher Kreamer Member John Kreamer founded his firm Kreamer Law Group, LLC with one central mission: to provide individuals and businesses alike with the highest quality of legal services.  A long time Naperville resident, John chose to base his firm out of his hometown.  With his ...

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