Families First Coronavirus Response Act
By: Attorney Brett Sheptow
On March 18, 2020 the President signed into law the Families First Coronavirus Response Act (FFCRA or “the Act”). Of note to employers and employees are the Act’s provisions mandating paid sick leave to all employees, and amending the Family and Medical Leave Act. These provisions, taken together, represent an attempt by the federal government to blunt the financial impact on employees directly affected by the Covid-19 outbreak, allow for flexibility in scheduling to allow for care-obligations, incentivize employers to keep their doors open for business, and curb the spread of the virus. The Act’s key provisions are summarized below.
Paid sick leave
- Full-time employees are entitled to 10 days / 80 hours of paid sick leave
- Sick leave will be paid at the employee’s regular rate of pay if the leave is necessitated by a government-mandated quarantine applicable to the employee, a quarantine initiated at the behest of the employee’s health care provider, or the employee is experiencing Covid-19 symptoms and seeking a medical diagnosis
- Sick leave will be paid at 2/3 the employee’s regular rate of pay if the leave is taken to provide care for another for any of the reasons above, or due to a school or day care closure
- Pay is capped at $511 per day up to $5,110 total if the regular rate is utilized; $200 per day up to $2,000 total if the 2/3 rate is utilized
- Paid sick leave conferred by the law is meant to be in addition to, not in lieu of, paid leave otherwise offered by the employer
- 100% of the leave paid by businesses pursuant to this section is reimbursable by tax credits
Amendments to the FMLA
- Eligible employees are entitled to 12 weeks of leave. Weeks 3-12 will be paid at 2/3 of the employee’s regular rate of pay. The first two weeks may be unpaid at the employer’s discretion; but accrued leave may be used for these weeks (as may the two weeks of paid leave provided for and described above, if taken pursuant to a school or day care closure – see below)
- Paid leave is capped at $200 per day, up to $10,000 total
- To be eligible, an employee must have been working for the employer for at least 30 days
- The only permissible FMLA-qualifying reason for leave under the FFCRA is the closure of a child’s school or day care facility
- The requirement that the employee be restored to the same or an equivalent position is obviated with respect to employers with less than 25 employees, if restoration is made infeasible from an operational standpoint due to circumstances caused by the Covid-19 public health emergency. However, under such circumstances, the employer must make efforts to restore the employee for one year
- 100% of the leave paid by businesses pursuant to this section is reimbursable by tax credits
These provisions amend the FMLA in five (5) significant ways:
- Paid leave –the FMLA provided unpaid leave only; the FFCRA provides for paid FMLA leave to eligible employees
- Minimum number of employees –only employers with a minimum of 50 employees were subject to the FMLA; the FFCRA subjects virtually all employers to its FMLA provision, regardless of the number of employees
- Minimum employee tenure –an employee had to have been working for the employer for a full year, and must have worked at least 1,250 hours in the 12 months preceding the leave in order to be eligible for FMLA; per the FFCRA, an employee need only have been employed for 30 days
- Job restoration – the FFCRA contains a carve-out for employers with less than 25 employees who are unable to restore the employee (but obligates them to make efforts at restoration for a year)
- Qualifying reasons –eligible employees could avail themselves of FMLA leave if such leave was necessary to cope with a serious medical condition, to care for an immediate family member suffering from a serious medical condition, or for the birth or adoption of a child; under FFCRA-provided FMLA, the only qualifying reason for leave is the closure of a child’s school or day care center due to Covid-19
Exemptions
The FFCRA’s Paid Sick Leave & FMLA provisions contain a per se exemption for employers with 500 employees or more. Furthermore, Department of Labor pronouncements exempt employers of healthcare providers and emergency responders. The DOL also exempts businesses with less than 50 employees from the Act’s FMLA provision and from its Paid Sick Leave provision – but only insofar as an employee’s Paid Sick Leave is due to a school or day care closure – if an authorized officer of the employer finds that one of the following three criteria apply:
- Providing the leave would cause the business’s expenses and financial obligations to exceed its revenues and cause the business to cease operating at minimal capacity
- Particularized skills, knowledge or responsibility on the part of an employee make his/her absence a substantial risk to the company’s operations and financial health
- There are not sufficient workers ready, willing and able to perform the duties of the employee requesting leave
Key Takeaway
The FFCRA’s Paid Sick Leave & FMLA provisions may seem confusing and overwhelming, but they need not be so. The beginning of any analysis should start with a threshold question: what is the reason for the requested leave? If the reason for the leave is anything other than a school or child care closure, the Act’s FMLA provision is unavailable. This is because the only qualifying reason for the Act’s FMLA provision is a school or child care closing. If the reason for the leave is anything else – only the Paid Sick Leave provisions come into play (This means that even someone who finds themselves in the unfortunate situation of having contracted Covid-19 is not eligible for the Act’s FMLA leave benefits!). From there it is just a matter of following the guidelines, determining the correct rate of pay, and deciding whether an exemption applies.
If you have questions about the FFCRA or seek additional guidance, you should contact our office or the U.S. Department of Labor.