Families First Coronavirus Response Act (FFCRA)

On March 18, 2020, the “Families First Coronavirus Response Act” (FFCRA or Act) was signed into law. The FFCRA contains two different paid leave types related to the 2019 novel coronavirus (COVID-19) that apply to South Carolina state government agencies and institutions:

  • Emergency Family and Medical Leave Expansion Act (EFMLA): Expands the federal Family and Medical Leave Act to provide leave for employees who are unable to work, including work-from-home, as a result of having to care for a minor child due to a COVID-19 related closure of a school or child care center.
  • Emergency Paid Sick Leave Act: Provides up to 80 hours of paid sick leave for employees for six qualifying reasons related to COVID-19.

Both paid leave provisions take effect April 1, 2020, and both expire Dec. 31, 2020.

The EFMLA amends and expands the federal Family and Medical Leave Act (FMLA), on a temporary basis, to provide qualifying employees 12 weeks of leave if the employee is unable to work, including work-from-home, due to the need to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the child care provider is unavailable due to a public health emergency.

Who is eligible to take EFMLA?
Employees are eligible to take leave under the EFMLA Act if they have been employed at least 30 calendar days. This includes employees in non-FTE and non-leave accruing positions. If the employee worked as a temporary, time-limited or temporary grant employee and was then transitioned to an FTE position, the total time worked in both positions should be added to determine if the 30-day timeframe has been met. The FFCRA permits employers to exclude an employee who is a health care provider or an emergency responder taking Emergency Paid Sick Leave and EFMLA leave. (See definition of health care provider and emergency responder under General Information.)

Is EFMLA leave paid or unpaid?
The first 10 workdays of the 12 workweeks of leave provided under the EFMLA are unpaid, but in accordance with standard FMLA administration, employees may use any paid leave available concurrently with EFMLA leave during this 10-day period. After the first 10 workdays, paid leave must be provided for the remaining leave taken under the EFMLA. This includes leave taken by employees who do not currently earn leave including temporary, temporary grant and time-limited employees. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even, if that is more than 40 hours in a week.

Is the leave paid at the employees’ regular rate of pay?
The paid leave provided to eligible employees is calculated at two-thirds of an employee’s regular rate of pay and should be based on the number of hours the employee would otherwise be normally scheduled to work. Paid leave under the EFMLA is capped at $200 per day and $10,000 in the aggregate. Employees can use any accrued leave to augment leave taken pursuant to the EFMLA up to their regular salary rate.

Does EFMLA leave carry-over to next year?
Leave may be used at any time between April 1- Dec. 31, 2020, but paid leave provided under the Act does not carry over from year to year.

How is 30 calendar days calculated for purposes of determining eligibility for EFMLA?
An employee is considered to have been employed for 30 calendar days if the employee has been on payroll with any state agency for the 30 calendar days immediately prior to the day the leave would begin. This does not necessarily mean that the employee has actually worked 30 calendar days. For example, if I was placed on payroll beginning March 2, 2020, my eligible begins 30 calendar days from March 2, 2020, even if I only worked Monday through Friday of this period.

If an employee has been working for an agency as a temporary employee, and the employee is subsequently hired into an FTE-position, the days previously worked as a temporary employee count toward this 30-day eligibility period.

Is the 12 workweeks of leave provided under the EFMLA included in the 12 workweeks of leave provided by the FMLA?
Yes. Employees are limited to a combined total of 12 weeks of leave taken under the EFMLA and FMLA during a calendar year. If an employee has already taken 12 workweeks of FMLA leave during the applicable 12-month period, they may not take additional leave under the EFMLA.

The Emergency Paid Sick Leave Act is a new, temporary form of leave that applies to any public agency, including all South Carolina state government agencies and institutions. State employees may take up to 80 hours of paid sick leave for one of six qualifying reasons outlined below. This includes employees who do not currently earn leave including temporary, temporary grant and time-limited employees. Employees are eligible from their first day of employment.

What are the qualifying reasons for paid sick leave?
An agency must provide paid sick leave if the employee is unable to work (or work-from-home) because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in paragraph 1 or has been advised as described in paragraph 2. Please note that the person being cared for does not have to be related to the employee for the employee to qualify for leave.
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Does Executive Order 2020-11 constitute a quarantine or isolation order?
Yes, Governor McMaster’s Executive Order requiring that all non-essential state employees not report to work constitutes a “Federal, State, or local quarantine or isolation order related to COVID-19.” Therefore, all employees who are unable to work-from-home and have been ordered not to report to the worksite would qualify for this leave.

Are there any exceptions?
An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection. (See definition of health care provider and emergency responder under General Information.)

How many hours of paid sick leave can be taken?
Full-time employees (those who are regularly scheduled to work 37.5 or 40 hours per week) are entitled to 80 hours of paid leave. The Emergency Paid Sick Leave Act requires that paid sick leave be provided for the hours the employee would have been normally scheduled to work even if that is more than 37.5 or 40 hours in a week. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Is the paid sick leave paid at the employees’ regular rate of pay?
It depends on the reason for leave. If leave is taken for the first three reasons listed in the Act as noted below, the employee is paid their regular rate of pay up to $511.00 per day or $5,110 in the aggregate. If leave is taken for any other eligible reason (reasons four through six listed in the Act as noted below), the employee is paid two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day and $2,000 in the aggregate. Employees can use any accrued leave to augment leave taken pursuant to the Emergency Paid Sick Leave Act up to their regular salary rate.

Which qualifying reasons for leave are paid at the employees’ regular rate of pay up to $511.00 per day?
1. The employee is subject to a Federal, State, or local quarantine or isolation orders related to COVID–19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

Which qualifying reasons for paid sick leave are paid at two-thirds the employees’ regular rate of pay to $200.00 per day?
4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 or has been advised as described in paragraph 2.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Are part-time employees entitled to the same amount of leave?
Part-time employees, including employees in part-time FTE positions, are entitled to paid leave for the number of hours equal to the number of hours that such employee works, on average, over a two-week period.

Does paid sick leave carry-over to next year?
Leave may be used at any time between April 1-Dec. 31, 2020, but paid leave provided under the Act does not carry over from year to year.

Can Emergency Paid Sick Leave or EFMLA leave be used for absences before April 1, 2020?
No. Emergency Paid Sick Leave and EFMLA cannot be provided retroactively.

Can employees take Emergency Paid Sick Leave or E-FMLA leave intermittently (i.e. in less than full-day increments) while working from home or the physical workplace?
Yes, if an employee is unable to work their normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, the employee may take paid sick leave intermittently. Similarly, if the employee is prevented from working their normal schedule of hours because they need to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee can take expanded family medical leave intermittently.

Are employees required to take other types of leave (e.g. annual leave, sick leave and family sick leave) before taking EFMLA leave or Emergency Paid Sick Leave?
No. An employer cannot require an employee to take other leave prior to taking Emergency Paid Sick Leave or EFMLA leave. The employee may, however, elect to use other leave to supplement the paid leave provided under the FFCRA in order to receive their full salary. Employees may also choose to use other types of leave available prior to taking emergency paid sick leave or EFMLA leave.

Telework/Telecommuting

During this pandemic crisis, telework options may be authorized for eligible positions as determined by a supervisor. In such instances, efforts should be made to continue daily working activities (similar to working in the office) to meet the business needs of the agency. Mission critical work that can be performed remotely may be authorized.

The following are general expectations for supervisors while employees work remotely:

  • Supervisors should provide clear guidance and expectations for the work to be completed;
  • Supervisors should keep in close communication with employees (daily check-ins and/or team meetings);
  • Supervisors should have a copy of contact information for employees;
  • Supervisors should support and/or provide information and resources to employees to ensure division/business needs are met;
  • Supervisors should develop mechanisms (i.e., timelines) to manage/document assigned work and projects;
  • Supervisors should monitor progress and check in on employees on a regular basis;
  • Supervisor should provide resources and explanations on how specific work/tasks are to be completed; and
  • Supervisors should provide regular feedback on assigned projects and work assignments.

The following are general expectations while employees work remotely:

  • Remain in contact with your supervisor;
  • Ask questions related to telework assignments and gain a clear understanding of expectations;
  • Answer the phone (if applicable) and return voicemails in a timely manner, generally within 24 hours;
  • Check and respond to emails during work hours (Response is expected within 24 hours);
  • Keep Outlook calendar up to date;
  • Maintain work schedule hours (as approved by supervisor);
  • Notify your supervisor of any variations in work schedule/working hours, if different from that which is expected;
  • Be accessible by phone during working hours;
  • Ensure security and confidentiality of all agency property, data, records and files;
  • Notify your supervisor if internet, phone, or VPN access is limited or unavailable immediately upon becoming aware;
  • Schedule and attend meetings, via phone, WebEx, Skype, or Zoom. Mission critical meetings should not be cancelled simply because you are working remotely;
  • Complete expected work and tasks as defined by your supervisor. Business operations are to be sustained during teleworking; and
  • For any periods of time that you will be unavailable or not working, inform your supervisor and enter annual or sick leave into the system.

Who can telecommute/telework?
The decision to telework will be made by the employee’s supervisor based on the functionality of the position or the work to be performed and is not limited to position type or the individual’s job description. Social distancing is being encouraged to the extent possible. As such, agencies may establish work or activities outside the scope of the job description during this volatile period so the employee remains whole and does not have to use or exhaust leave.

How do I know if my position is eligible to telecommute/telework?
The employee and his or her supervisor should have a conversation to determine if the employee’s job functions or any other work or projects can be performed remotely. Specific expectations of job functions and work to be performed should be outlined prior to approval.

What if telecommuting/teleworking is not an option?
While the standard job duties for the employee may not qualify for telecommuting/teleworking, the supervisor may find alternative, meaningful work-related activities or projects for the employee to complete in order to be eligible.

If this is not an option, for an employee who accrues leave, the supervisor should discuss the option of using annual or sick leave to accommodate the absence. The agency has been advised by the Division of State Human Resources that sick leave may be utilized during this COVID-19 pandemic to maintain social distancing, even if the employee is not sick.

I am a part-time temporary employee, will my position be eligible to telecommute/telework?
During this COVID-19 pandemic, employees in temporary positions may telework if the work to be performed is conducive to telecommuting/teleworking. Each situation will be evaluated on a case-by- case basis.

If approved to telecommute/teleworking, do I need to fill out a formal agreement?
Yes, a telecommuting/teleworking agreement is required to be completed and approved by the supervisor. If this is not feasible, due to the recent Executive order that non-essential employees not report, the supervisor or Vice President may send an email notification to HR of the individuals approved to telework.

What if I cannot telecommute/telework because I am taking care of young children who are not in school?
In these cases, the supervisor should discuss the option of using sick and/or annual leave during the absence.

What do I need to work remotely?
Prior to telecommuting, an employee should have a good understanding of his or her role and the supervisor’s expectation. An employee should have all the necessary information, files and equipment needed to telecommute. Persons may use personal computers to complete task if a laptop is unavailable.

Is there any guidance for supervisors on how to manage their employees' telecommuting/teleworking and/or resources?
More guidance can be found on the COVID-19 Guide for Supervisors and Employees provided by Human Resource Services.

Do I work the same schedule while I telecommute/telework?
Ideally, employees working remotely will work to provide continuity of services during normal business hours; however, supervisors/managers should be in agreement, if an alternate work schedule is desired.

Do I need to work at home when I work remotely?
Employees may choose a location that is conducive to complete their work, which may or may not be their home. The idea of social distancing should be considered when choosing an alternate work location.

How should I record my time worked when working remotely?
Non-exempt and temporary employees are required to continue entering work time in SCEIS based on the number of hours worked. All non-exempt employees must account for 37.50 hours, either through work time, annual leave, or sick leave.

Will I be required to take leave if I am unable to telecommute/telework?
Based on the current guidance from the Division of State Human Resources, employees not telecommuting or working in any capacity should use sick leave, annual leave, or leave without pay to account for the missed work time.

Working remotely can be quite a change. How should state employees adjust to their new,
temporary work environments? Here are a few helpful hints to ensure productivity in the days
ahead.

  1. Create a dedicated workspace.
  2. Develop and stick to a routine for your workday. Follow your agency’s normal work hours.
  3. Use the first 10 minutes of your workday to make a list of tasks to accomplish for the day.
  4. Stay connected with your team to maintain effective collaboration.
  5. Be patient as circumstances change.

As always, if you have questions about how to accomplish specific tasks or projects, talk with
your supervisor.
(These tips were compiled from the Harvard Business Review, Nasdaq.com and Think with
Google.)

 

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