UPDATED COVID-19 GUIDANCE
UPDATED COVID-19 GUIDANCE
Several days into the State of Illinois’ COVID-19 Response and Governor Pritzker’s Stay-Home Executive Order, we want to bring several developments to your attention as you guide your businesses through these difficult times.
The Families First Coronavirus Response Act
The U.S. Congress passed and the President signed into law the Families First Coronavirus Response Act (“FFCRA”) and its requirements go into effect on April 2, 2020. Further, the Act is effective until, or sunsets on December 31, 2020. FFCRA applies to all employers with fewer than 500 employees along with all government employers, with limited exceptions. The FFCRA provides the following:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay (subject to caps) where the employee is unable to work because the employee is quarantined (pursuant to government order or advice of health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay (subject to caps) because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (as limited above), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay (subject to caps) where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- Small Businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. (Secretary of Labor to issue a regulation on this topic)
- A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period (if schedule varies, six-month average is used).
- Caps: For paid sick leave at regular rate of pay, the employee is paid regular rate or minimum wage (whichever is higher) up to $511 per day and $5,110 in the aggregate 2-week period. For leave at two-thirds the regular rate of pay, the employee is paid 2/3 their rate of pay or 2/3 the applicable minimum wage (whichever is higher) up to $200 per day, $2,000 in the aggregate 2-week period or $12,000 in the aggregate 12-week period (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family medical leave).
- Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA.
- No Carryover/Payout: There is no carryover of unused hours into subsequent years or payout upon termination.
- Employers of certain health care providers or emergency responders may elect to exclude such employees from the leaves in this Act.
- The U.S. Department of Labor has created a poster that is required to be posted by April 8, 2020. (The Poster is Attached)
- A violation of the Sick Leave Portion of the Act is a minimum wage violation under the Fair Labor Standards Act, which can include lost wages, liquidated damages, attorney’s fees and costs. Intentional violations may result in up to a $10,000 fine and, for repeat offenders, up to six months in prison after a prior conviction. A violation of the expanded family medical leave is a violation of the FMLA, which can include lost wages and benefits, other actual monetary losses, liquidated damages, attorney’s fees and costs, and equitable remedies such as reinstatement.
Illinois WARN Act
The Illinois version of the federal Worker Adjustment and Retraining Notification Act (“Illinois WARN”), requires a 60-day advance written notice of a layoff or furlough with a reduction of more than 50% of hours for 33% of the full-time workforce and at least 25 employees at a single site , or at least 250 full-time employees in total). The Illinois Department of Labor has just provided that employers seeking an exception under 820 ILCS 65/15, they should provide IDOL with a written basis (admin rule 230.220) for why they are seeking a reduction in notice period and describe what notice period they want, including none. IDOL will then make an individual determination that we will make sure internally to expedite. Be sure to request the exception prior to the layoff.
Power & Cronin greatly appreciates the opportunity to provide you with the very best legal representation. Please let us know if you need any further guidance with COVID-19 or any other matter to assist with your business. Our staff of 15 attorneys are available at your request.
Very truly yours,
Daniel J. Cronin
POWER & CRONIN, LTD.
US Department of Labor Questions and Answers regarding FFCRA Posting Requirements