Families First Coronavirus Response Act

Paid Time Off GraphicFamilies First Coronavirus Response Act (H.R. 6201), signed into law by President Trump on March 18, 2020, mandating all employers who employ under 500 people to offer paid leave for certain COVID-19 related reasons

Updated March 25, 2020

The Families First Coronavirus Response Act (“FFCRA”) has several provisions directly relevant to all employers who employ less than 500 people. Employers who employ more than 500 people total are exempt from the FFCRA.

Perhaps the most significant of these provisions is the paid-leave mandate, addressed below.

The FFCRA also amends the Family and Medical Leave Act (“FMLA”). This blog post is intended to highlight some of the major mandates of the FFCRA, but is not meant to provide legal advice and is not comprehensive of the FFCRA’s requirements.

This post has been updated to include the US Department of Labor’s guidance on the FFCRA, issued on March 24 and 25, 2020.

When do the FFCRA mandates go into effect?

The FFCRA is effective from April 1, 2020 through December 31, 2020.

What Employees are Eligible under the FFCRA?

All employees are eligible for paid sick leave. Individuals who have been employed for at least 30 days are eligible for paid FMLA leave.

What Employers are Covered under the FFCRA?

All employers who employ 500 employees are covered under the FFCRA for purposes of providing paid sick leave. In determining whether an employer employs 500 employees, the employer must count all full-time and part-time employees within the United States, including employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary agency, but do not need to include independent contractors.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. The US Department of Labor will be putting out further guidance on how to apply for the exemption in the coming days, and we will update this post accordingly.

How did the FFCRA expand the Family and Medical Leave Act?

The FFCRA expands the FMLA with the Emergency Family and Medical Leave Expansion Act.

Employees are now eligible for FMLA leave in order to care for the employee’s son or daughter (under 18 years of age) if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a “public health emergency.” The term “public health emergency” means an emergency with respect to COVID–19 declared by a Federal, State, or local authority.

The childcare exception is the only reason for leave under a “public health emergency” and the only circumstance under which an employee is entitled to paid leave under the FMLA.

The following mandates apply to employees who qualify for COVID-19 related FMLA leave:

  • The first 10 days of leave may be unpaid at the employee’s election (or the first 10 days can be paid with emergency paid leave, as set forth below);
  • After the first 10 days, the remaining leave (12 weeks total for full time employees or the number of hours part-time employees are eligible to work during that time period) shall be paid at 2/3 the employee’s regular rate of pay, capped at $200 a day and $10,000 in the aggregate.

What are the amounts of paid leave qualifying employers must provide pursuant to the Emergency Paid Sick Leave Act?

Qualifying employers must provide a certain number of paid sick leave hours if an employee is unable to work (or telework) due to a need for leave 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 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.

Right now, it is unclear how much information or what kind of information employers may ask employees for in determining sick leave eligibility.

Full-time employees who meet one of the above requirements shall be offered 80 hours of paid sick leave and part-time employees shall be offered a number of hours equal to the number of hours that such employee works, on average, over a 2-week period, paid as follows:

  • For employees covered under paragraphs 1-3, they shall be paid at their regular pay rate, capped at $511 per day and $5,110 in the aggregate.
  • For employees covered under paragraphs 4- 6, they shall be paid at their regular rate of pay capped at $200 per day and $2,000 in the aggregate. The Emergency FMLA provisions discussed above are also applicable to employees covered under paragraph 5 who also qualify for FMLA leave.

There are specific formulas for calculating a part-time employees hours under the FFCRA, which employers should consult or review with an attorney.

Emergency sick leave shall not carry over year to year and is not paid out at the separation of employment. An employer may not force an employee to use other paid leave prior to using mandatory leave mandated by the FFCRA.

Are Employees’ Jobs Protected Under the FFCRA?

The FFCRA provides that the same already-existing FMLA requirements regarding restoration to an employee’s former position shall apply, except that if the employer employs less than 25 people, job restoration is not required if the following conditions are met:

  • The employee takes leave in order to care for the employee’s son or daughter (under 18 years of age) if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a “public health emergency.”
  • The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer (1) that affect employment and (2) are caused by a public health emergency during the period of leave.
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
  • If the reasonable efforts of the employer to restore the employee to a position equal to the position the employee held when the leave commenced fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available either when the “public health emergency” concludes or 12 weeks after the employee’s leave commences.

The restoration to job requirement could affect employer lay-offs during the COVID-19 pandemic.

Who pays for the mandatory sick leave?

Qualifying employers are required to pay for the mandated sick leave but will receive tax credits pursuant to the FFCRA.

Is there a Required Notice to employees of the FFCRA?

Employers shall be required to post notice of the requirements pursuant to the FFCRA conspicuously. The notice requirement may also be met by emailing the notice to all employees or posting the notice on the employer’s website under “employee information.” The Notice Poster issued by the Department of Labor can be found here.

Enforcement

Employers who are not in compliance with the FFCRA may face penalties as set forth in the Fair Labor Standards Act and the FMLA. The US Department of Labor guidelines issued on March 25, 2020 clarify that enforcement will be suspended through April 17, 2020 for all employers who make reasonable, good faith efforts to comply with the FFCRA and who immediately correct any wrongful actions under the FFCRA.

Conclusion

The FFCRA provides mandatory and immediate relief to employees who must miss work due to certain COVID-19-related situations, and employers should take immediate steps to implement the requirements in order to avoid penalties (as set forth in the FFCRA). In addition, prior to instituting layoffs, employers should ensure they are not violating the FMLA and the Emergency FMLA Expansion Act in the FFCRA. Congress is rapidly working to enact more COVID-19-related legislation that may affect employers, and we expect more guidance regarding the FFCRA’s mandates to be issued in the coming days.  Please check back for updates to this blog as further information becomes available.  In addition, contact us with any FFCRA or other COVID-19 employment-related questions.

Davis & Ceriani’s COVID-19 Employment Law Team:

Valeri Pappas, Managing Partner
vpappas@davisandceriani.com

Jennifer Tiedeken, Special Counsel
jtiedeken@davisandceriani.com