The Families First Coronavirus Response Act (FFCRA) provides eligible employees with additional paid leave options should they be unable to work due to the COVID-19 outbreak. The law contains two provisions impacting employee leaves. The first, a new federal paid sick leave benefit called the Emergency Paid Sick Leave Act, provides paid leave to employees who are unable to work for certain COVID-19 related reasons. The second, a temporary expansion of the existing Family and Medical Leave Act (FMLA), can be used by parents impacted by school and childcare closures. Following are essentials every employer needs to know about the legislation:
For the public sector: all state and local government employers, including school districts and municipalities, are covered.
For the private sector, only businesses with fewer than 500 employees are covered, a departure from standard FMLA rules, which apply to companies employing 50 or more employees (and to all public agencies).
Calculating Private Employer Head Count
Employers hovering around the 500 mark should calculate head count each time an employee needs to take leave under the Act to determine if they employ 499 or fewer employees. The rules require the employer to count all employees within the United States, even part-time, temporary, seasonal, and employees on a leave of absence. This is a departure from standard FMLA rules, which apply to companies employing 50 or more employees (and to all public agencies).
Parent companies with multiple subsidiaries wishing to aggregate related businesses to determine total employee count must first determine if they meet either the joint employer test under the Fair Labor Standards Act (FLSA) or the integrated employer test under the Family and Medical Leave Act (FMLA). These tests rely on multiple factors, including degree of common labor relations, management, operations, and ownership.
Small Business Exemption for School Closure Leave
Small businesses under 50 employees are eligible to apply for an exemption to the school closure portion of the law if providing paid sick leave or expanded family and medical leave would threaten the ongoing viability of the business. Small businesses wishing to apply for the exemption should review the applicable regulations closely.
Exemption of Healthcare Providers and Emergency Responders
Employers may exclude certain healthcare providers and first responders from accessing leave under the Act. Employers that need to rely on these exemptions should review the applicable regulations closely.
Notice and Documentation Requirements
Notice to Employees
To inform employees of their rights under this law, each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an internal or external website. The notice is available at: https://www.dol.gov/agencies/whd/posters .
Documentation and Information Requirements
To support the need for leave, orally or in writing, employees should provide (and employers should maintain) records of the following: name; date(s) for which leave is requested; qualifying reason for leave; a statement that the employee is unable to work (including unable to telework) because of the qualifying reason; and the identity of the government entity/health care provider that issued the quarantine order; isolation order or advice to self-quarantine.
Additionally, for leave to care for a child whose school or provider is closed, employees should provide (and employers should maintain) oral or written notice of the name of the child needing care; the name of the school, place of care, or child care provider that has closed or become unavailable; and a statement that no other suitable person is available to care for the child during the period of leave.
Employees working for a covered employer are immediately eligible for Emergency Paid Sick Leave if they experience a qualifying COVID-19 related reason. There is no time in service requirement. For leave due to unavailability of a school or care provider under the Emergency Family and Medical Leave Expansion Act, employees must have worked for at least 30 days prior to the designated leave. (Under existing FMLA rules for leaves not covered by the FFCRA, employees must have worked for their employer for at least 1,250 hours during the past 12 months.)
Reasons for Leave
Employees in any of the following circumstances may be eligible for paid leave under the Emergency Paid Sick Leave Act:
- The employee is subject to or caring for an individual under a quarantine or isolation order related to COVID-19;
- The employee is seeking a medical diagnosis for symptoms of COVID-19;
- The employee is caring for a child whose school or place of care has been closed, or whose child care provider is unavailable due to COVID-19 precautions;
- 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.
Leave under the Emergency Family and Medical Leave Expansion Act is available when an employee is unable to work (including unable to telework) due to a need to care for a child whose school or care provider is closed or unavailable because of the COVID-19 public health emergency.
Amount of Leave Available
Emergency Paid Sick Leave: up to 80 hours of paid leave is available to an employee who is unable to work because they are under a government quarantine/isolation order, self-isolating at the direction of a health care provider, displaying symptoms and seeking a diagnosis, caring for another person who is under quarantine or isolation, or caring for a child whose school or care provider is closed.
Emergency Family and Medical Leave Expansion Act: up to 12 weeks of leave is available to employees impacted by school or childcare closures. Note that while the law expands FMLA eligibility by adding an additional FMLA qualifying reason for leave (school/childcare closures), it does not increase an employee’s total 12-week entitlement to FMLA. Employees who have already used all or a portion of their 12-week allotment for the employer’s designated 12-month FMLA period will be limited to the remaining balance in the event of a school or daycare closure.
Part-time employees working less than 40 hours per week are entitled to pro-rated leave based on the average hours they would normally have worked in a two-week period. For employees with variable schedules, employers should use the average number of hours that employee was scheduled per day over the preceding six months (including credit for any hours for which the employee took any type of leave). If the employee did not work over that time period, the employer should use the reasonable expectation of the employee at their time of hiring as to the average number of hours per day the employee would have normally been scheduled to work.
Amount of Pay Available
The pay rate depends upon the reason for leave. Employees taking leave to attend to their own COVID-19 related health condition are eligible for up to 80 hours of Emergency Paid Sick Leave at their regular rate of pay, subject to a cap of $511 per day and $5,110 in total. Employees taking leave to care for another person are eligible for up to 80 hours of Emergency Paid Sick Leave at two-thirds their regular rate of pay, subject to a cap of $200 per day and $2,000 in total. Employees accessing expanded FMLA in the event of a school/child care closure are eligible for up to 10 weeks of paid leave at two-thirds their regular rate of pay, subject to a cap of $200 per day and $10,000 in total. The employee may choose to use accrued paid sick time, vacation time, or other paid time off to supplement their pay. The employee may also elect to use the paid sick leave provided under the Emergency Paid Sick Leave Act (discussed in greater detail above) during the initial unpaid ten-day period of leave under the Emergency Family and Medical Leave Expansion Act.