News, Insights & Events

Nuts and Bolts of the Families First Coronavirus Response Act

March 30, 2020

On April 1, 2020, the Families First Coronavirus Response Act (FFCRA) will commence and be effective through December 31, 2020 for employers with less than 500 employees in the United States. On March 24, 2020, the DOL issued an informal compliance guide in a Q&A form which provided some clarification on this new legislation. Here are some considerations to keep in mind as employers implement the new leave requirements.

Which employees are covered? Covered employers are any private companies engaged in interstate commerce with fewer than 500 employees in the aggregate, governmental agencies and schools. Covered employees are any part-time or full time employees, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency with a covered employer are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons. Employees who have been employed for at least 30 days prior to the leave request may be eligible forup to an additional 10 weeks of partially paid expanded family and medical leave.

What does FFCRA require for covered employers?

Covered employers must provide up to 12 weeks of job-protected leave as expanded family and medical leave to care for an employee’s child when the child’s school or place of care is closed for coronavirus related reasons. The first two weeks may be unpaid. For any greater leave than two weeks, employers must pay wages of at least 2/3 employees regular rate of pay up to $200 per day and up to $10,000 in the aggregate.
Covered employers under the Act must provide employees with up to two weeks (80 hours, or a part-time employee’s two week equivalent) of paid sick leave based on the higher of their regular rate of pay, the applicable state or Federal minimum wage paid at:
1. 100% for qualifying reasons #1-3 below, up to $511 daily and $5,110 total;
2. 2/3 for qualifying reasons #4 and 6 below, up to $200 and $2,000 total; and
3. Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.
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 an employee is taking expanded family and medical leave, he or she may take paid sick leave for the first ten days of that leave period, or an employee may substitute any accrued vacation leave, personal leave, or medical or sick leave he or she has under the employer’s policy.

When is an employee entitled to take paid sick leave related to COVID-19?

An employee is entitled to take leave related to COVID-19 if the employee is unable to work, including telework, because the employee:
1. Is subject to a Federal, state or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine related to COVID-19;
3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. Is caring for her or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
6. Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

When is an employee entitled to take paid sick leave related to COVID-19?

An employee is entitled to take leave related to COVID-19 if the employee is unable to work, including telework, because the employee:
1. Is subject to a Federal, state or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine related to COVID-19;
3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. Is caring for her or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
6. Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

Other considerations:

Covered employers are required to post notice of the FFCRA in a conspicuous place at the place of work, or if employees report directly to separate worksites, at each site. Employers may provide the notice to teleworkers by email or regular mail. Click here to view the notice poster from the DOL.
Employers must pay for all scheduled hours that the employee would have otherwise worked, including overtime, when he or she takes leave. However, the paid leave is based on the employee’s regular rate of pay and not the overtime premium.
The paid sick leave is in addition to, and not a substitute for employers’ existing sick leave policies. In other words, paid sick leave under the FFCRA does not affect an employee’s ability to take any other forms of paid leave they have accrued, such as PTO, vacation, time mandated by city or state laws or time offered as part of a company policy. Employees can use their accrued PTO/vacation if they want to, but the employer cannot mandate that the employee draw down their PTO bank before using the emergency options. It needs to be by mutual agreement
The Secretary of Labor can exempt employers with fewer than 50 employees if complying with the law would threaten the viability of the business. To be eligible, an “authorized officer of the business” must determine that the leave request falls into any one of three categories: (1) that the paid leave provision would cause the business’ expenses and financial obligations to exceed its revenue and cause it to “cease operating at a minimal capacity”; (2) that the absence of any workers who request FFCRA leave will “entail a substantial risk” to the company’s financial well-being or its ability to operate because they possess “specialized skills, knowledge of the business, or responsibilities”; or (3) that there are not enough qualified workers available to do the work the employees requesting FFCRA leave perform if that work is necessary for the business to run at “minimal capacity.”
Employers who provide leave under the FFCRA are eligible for two new refundable payroll tax credits intended to fully reimburse employers for leave paid for under the FFCRA up to the allotted amounts. Employers need to collect documentation from employees to verify their need for leave under the Act as support for the tax credits.
Employees will not be eligible for any leave under the law if the employee’s worksite is closed due to a lack of business or stay at home directive.

Stay tuned for further updates in light of further developments and as more information becomes available.

About the Author: Lawrence Murray
Lawrence “Lonnie” Murry has extensive experience advising and representing employers in all aspects of employment law including separation agreements; discrimination; wage and hour issues; lay-offs; family and medical leave issues; disability issues; trade secrets; non-competition; and non-solicit agreements. Lonnie has provided sexual harassment prevention training for employers. In addition, he has negotiated employment and separation agreements on behalf of executives and physicians. He can be reached at lmurray@burnslev.com or 617.345.3510.