On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law by President Trump and is effective from April 1, 2020, until December 31, 2020. The FFCRA makes substantial changes to paid sick leave, paid family and medical leave along with tax credits for the paid leave, and an expansion of unemployment insurance for small businesses and employers in 2020. Specifically, the FFCRA relief package includes two provisions, the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave, that provide emergency leave to employees. These provisions only apply to private employers with less than 500 employees and governmental employees (counties, municipalities, state agencies, school districts, etc.).
Emergency Family and Medical Leave Expansion Act (EFMLEA)
The first section of the FFCRA contains an expansion of the U.S. Family and Medical Leave Act (FMLA). Covered employers are now required to provide their employees with up to 10 weeks of paid FMLA for COVID-19 triggering events. Furthermore, the first two weeks of the normal 12-week FMLA leave are unpaid, but an employee may elect to use his/her paid leave. After the first two weeks, paid leave is available at two-thirds the employee’s regular rate, which is capped at a set amount.
Employee Eligibility and Pay
Employees who have been employed for at least 30 days that cannot work (including remotely) because they are caring for children, as a result of COVID-19 related school closures are eligible.
As previously mentioned, businesses that have less than 50 employees may be exempt from these provisions. To be exempt, these businesses must show that providing this leave would put them at risk of going out of business. There are other provisions as well.
Emergency Paid Sick Leave (EPSL)
The second provision of the FFCRA affecting employers provides for Emergency Paid Sick Leave (EPSL). Qualifying employers must offer paid sick leave to eligible employees suffering from COVID-19 related health concerns. It should be noted that EPSL is to be offered in addition to any existing sick leave and/or paid time off that is already offered by an employer.
Employee Eligibility and Pay
The FFCRA Emergency Paid Sick Leave provisions are available to any employee if they are unable to work (including remotely) because they are:
- Subject to federal, state, or local quarantine or isolation related to COVID-19;
- Have been advised by their doctor to self-quarantine due to COVID-19;
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Caring for a family member subject to a quarantine order or self-quarantine;
- Caring for children if schools are closed or their caregiver is unavailable because of the COVID-19 health emergency; or
- Experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
A full-time employee suffering from any of these listed reasons may receive up to 80 hours of paid sick leave. Alternatively, part-time employees may receive pay based on the number of hours that they would work on average during a two-week period. Also, an employee who qualifies for any of the first three listed reasons may receive sick leave at their regular rate with pay capped at $511 per day and $5,110 total. On the other hand, an employee who qualifies based on the second three listed reasons may receive sick leave at two-thirds their regular rate of pay with amounts not exceeding $200 per day and $2,000 total.
As previously mentioned, businesses that have less than 50 employees may be exempt from these provisions. To be exempt, these businesses must show that providing this leave would put them at risk of going out of business. Also, healthcare and emergency response organizations may exclude employees from paid FMLA expansion due to COVID-19.
FFCRA Notice Requirements
The FFCRA requires that each employer post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in the law. The Department of Labor has issued a poster on its website in PDF format as of March 25, 2020 (link in “DOL Links” section). For employees working remotely, emails and/or push notifications are acceptable means of notice.
FFCRA Policy Amendments
To stay consistent with the FFCRA provisions, employers should update existing policies or create an addendum to existing policies or create new policies if the employer did not previously have an FMLA policy (50 employees or less).
White & Story will continue monitoring COVID-19 and related issues and will continue to operate and serve our clients, including assisting our clients with providing education about this new law to their employees; implementing it; and considering areas of liability such as employees out on existing FMLA leave, handling temporary staffing employees, and amending policies. Below are some helpful resources that may be of assistance with any questions or concerns associated with the recent FFCRA provisions resulting from COVID-19:
 At this time, the tax credits are not available to governmental employers, such as state agencies and school districts.