Paid Leave in the Fire Sprinkler Industry Under the Families First Coronavirus Response Act

President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on Wednesday. The FFCRA will take effect on April 1st and sunset on December 31, 2020. It includes paid leave protections that apply to employers with fewer than 500 employees. The costs of this leave will be paid by the federal government with payroll tax credits.

Please note that the following provisions apply to all employees, whether unionized or non-union. There is no exemption for employees covered by collective bargaining agreements.

Emergency Paid Sick Leave Act

For employees of NFSA member companies (with fewer than 500 employees) who meet one of the criteria listed below, the Emergency Paid Sick Leave Act (EPSLA) provides up to 80 hours of federally mandated, paid sick time. Part time employees are entitled to the average number of hours worked by the employee in a two-week period.These provisions apply to all employees, whether unionized or non-union. There is no exemption for employees covered by collective bargaining agreements.

NFSA member companies must pay sick leave claimed under this section for one of the following reasons at the employee’s regular rate of pay (or minimum wage, if greater): (1) employee is subject to a COVID-19 quarantine declared by federal, state, or local government; (2) employee is self-quarantined on the advice of a healthcare professional; or (3) employee is awaiting a diagnosis and experiencing COVID-19 symptoms. Sick leave paid for one of these reasons is capped at $511 per day and $5,110 in aggregate.

Sick leave claimed for one of these reasons must be paid at two-thirds of the employee’s regular rate of pay (or minimum wage, if greater): (1) the employee is caring for a person quarantined by government authority or self-quarantined subject to the advice of a medical professional; (2) the employee is caring for a minor child because childcare is unavailable to due COVID-19 precautions; or (3) the employee is experiencing any other condition qualified for EPSLA leave by the Secretary of Health and Human Services. Sick leave paid for one of these reasons is capped at $200 per day and $2,000 in aggregate.

An employer may not require an employee to use other paid leave before using EPSLA leave. EPSLA sick leave will not carryover to 2021 and is not required to be paid upon the employee’s separation from employment. Rights accrued under the EPSLA do not diminish any other employee rights.

Employers must post, conspicuously and in a commonly utilized location, notice of sick leave under this section. Notice must be in a form provided by or approved by the Secretary of Labor.

Once an employee commences sick leave, an employer may require the employee to follow reasonable notice procedures to continue to receive paid sick leave.

An employer may not retaliate—in the form of discharge, discipline, or discrimination—against any employee who takes leave under this section, files a complaint under this section, or testifies in relation to a complaint under this section.

Please note that each contractor will be responsible for providing this paid leave to their employees and for keeping appropriate records. This obligation for employers of unionized employees will not be covered by the NASI funds.

The Secretary of Labor is empowered to exclude healthcare professionals, emergency responders, and small businesses with fewer than 50 employees when “the imposition of such requirements would jeopardize the viability of the business as a going concern.”’

Most importantly, NFSA member companies should note that failure to comply with EPSLA provisions will subject the offending company to penalties for violations of the Fair Labor Standards Act.

Family and Medical Leave Act Changes

The other set of significant leave provisions for NFSA member companies are enacted under the Emergency Family and Medical Leave Act Expansion (EFMLAE). This is a temporary expansion of protections under the Family and Medical Leave Act (FMLA). The EFMLAE applies to companies with fewer than 500 employees and covers employees who have been employed for at least 30 calendar days.

The EFMLAE provides 12 weeks of job-protected leave for a qualifying event, the last 10 of which are paid. EFMLAE leave is in addition to the provisions of the EPSLA above, and, therefore, the first two weeks of leave can be covered by the EPSLA. If the employee does not qualify for EPSLA leave, he/she may use vacation, personal, medical, or sick leave time accrued outside the FFCRA framework. To claim family leave under this section, the employee must be unable to work or telework because of the need to care for a child under 18 years old due to the unavailability of childcare resulting from a public health emergency declared by federal, state, or local government.

Leave under this section, after the first two weeks, shall be paid at two-thirds of the employee’s regular rate of pay for the number of hours the employee is regularly scheduled to work. Pay for family leave under this section is capped at $200 per day or $10,000 total.

As with EPSLA sick leave, each contractor will be responsible for providing this EFMLAE paid family leave to their employees and for keeping appropriate records. Again, the NASI funds do not cover this benefit.

Similar to the EPSLA provisions, NFSA member companies may require employees to provide notice of intent to use family leave. Notice must be provided as soon as practicable.

Finally, specific conditions are in place that exempt an employer with fewer than 25 employees from restoring an employee to his/her position after taking family leave under this section. However, these instances are narrowly tailored.

Continued Monitoring

NFSA continues to monitor the developing legal and legislative landscape created by the response to COVID-19. We will provide additional updates on applicable topics affecting the fire sprinkler industry as new developments emerge.