Provisions of the Families First Coronavirus Response Act and Expanded Family and Medical Leave

The Families First Coronavirus Response Act (‘FFCRA’ or ‘Act’) requires most employers with fewer than 500 employees to provide emergency paid sick leave and, if applicable, expanded paid Family and Medical Leave (‘E-FMLA’) for specified reasons related to COVID-19.[1] The Department of Labor’s (‘DOL’) Wage and Hour Division (‘WHD’) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date of April 1, 2020 through December 31, 2020.

Generally, the Act provides that covered employers must provide all full and part-time eligible employees [2] with up to 80 hours of paid sick leave at full pay (subject to dollar amount caps) when employees are unable to work because of government or medical quarantine or because they are experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employers must pay up to 80 hours of sick leave  at two-thirds the employee’s regular rate of pay (subject to dollar amount caps) to employees unable to work because of a bona fide need to care for an individual subject to government or medical quarantine, or the inability to work (or telework) due to the need to care for a child under 18 whose school or child care provider is closed or unavailable due to the current public health care emergency.

A covered employer must provide to all employees that it has employed for at least 30 days [3] up to an additional 10 weeks of paid E-FMLA at two-thirds the employee’s regular rate of pay 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.

Covered Employers:

The paid sick leave and E-FMLA provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[4]

Most employees of the federal government are not covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. 

Small businesses with fewer than 50 employees may qualify for 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. The DOL’s guidance does not offer further information as to the exemption at this time. Detailed regulations will be issued in the near future.

Employers who provided paid leave prior to the Act’s effective date are not credited with compliance for purposes of the Act.

Eligible Employees:

All full-time, part-time and per diem employees of a covered employer within the U.S. are presumptively eligible for leave including, but not limited to, those employees currently on leave, temporary employees, and day laborers supplied by a temporary agency. Employees must work for 30 days to be eligible for E-FMLA.

Employees laid off, furloughed, or terminated prior to the effective date, April 1, 2020, are not eligible for paid leave unless they are returned to work.

Part-time employees will receive payment for the average number of hours worked over a two-week period. For purposes of determining this number, employers should calculate hours of leave based on the number of hours the employee is normally scheduled to work. To account for recent variations in schedule, the DOL allows employers to use a six-month average to calculate the average daily hours.

Part-time employees are subject to the 80-hour cap.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave 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 a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:[5]

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at two-thirds their regular rate or two-thirds the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at two-thirds their regular rate or two-thirds the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section.

Regular rate shall include tips, commissions and other parts of an employee’s regular rate.

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Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.

Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. Employers should email or mail this notice to employees who are telecommuting or those who do not work in fixed employer locations.  [6]

Anti-Retaliation: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Penalties and Enforcement: Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement provisions in the Fair Labor Standards Act. Employers in violation of the E-FMLA provisions are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement until at least April 17, 2020, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the employer provides DOL with a written agreement to comply with the Act going forward.

If you have any questions regarding the FFCRA or expanded Family and Medical leave, or any other employment-related legal issue, please contact Leah Sell. 

Leah Sell is an Associate with Leech Tishman, and a member of the firm’s Employment & Labor, Corporate and Litigation Practice Groups, as well as the Cannabis and LaunchPad subgroups. She is based in the firm’s Pittsburgh office and can be reached at 412.261.1600 or lsell@leechtishman.com. 

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[1] Every dollar of required paid leave (plus the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer. For more information, please see the Department of the Treasury’s website.

[2] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility.

[3] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility.

[4] Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020).

[5] Paid sick time provided under this Act does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment. Calculation of pay does include commission and tips.

[6] The Department of Labor model notice issued March 25, 2020 can be found at this link, https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

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