What You Need to Know About the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”) which goes into effect on April 1, 2020, is a federal law enacted on March 18, 2020 in response to the COVID-19 pandemic. 

The mandatory law requires most private employers of 500 or fewer employees and all governmental employers to provide paid emergency sick leave and expanded family medical leave. 

It  also establishes certain tax credits for employer compliance. Employers should be aware of the following aspects of the FFCRA:

Paid Emergency Sick Leave

Full-time employees are entitled to at least 80 hours of paid emergency sick leave. Part-time employees are entitled to the average number of hours the employee works during a two-week period. Paid emergency sick leave must be provided in addition to any existing sick leave benefits. 

• Paid emergency sick leave should be provided to an employee of at least 30 days when such employee cannot work or telework due to any of the following reasons related to COVID-19:
  • a.  federal, state, or local quarantine or isolation order;
  • b. self-quarantine advice from a health care provider;
  • c. experiencing COVID-19 symptoms while seeking a medical diagnosis;
  • d. caring for an individual subject to a quarantine or isolation order or advised to self-quarantine because of COVID-19 concerns;
  • e. caring for a son or daughter of the employee if the school or place of care of the child has been closed or the childcare provider is unavailable because of COVID-19 precautions; or
  • f. 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.
• Employees of Employers covered under the Act who take emergency paid medical sick leave should receive their regular rates of pay up to a certain cap. 
• Employees taking care of a family member are only entitled to receive two-thirds of their regular rates of pay up to the cap. 
• Emergency paid medical sick leave for each employee taken for reasons (a) – (c) above is limited to $511 per day or $5,110 in the aggregate.
• Emergency paid sick leave taken for reasons (d) – (f) is limited to $200 per day or $2,000.00 in the aggregate. 
• Retaliation for using emergency paid sick leave or making related complaints is prohibited.

Employers with fewer than 50 employees may be exempt from compliance if providing such emergency paid medical sick leave would jeopardize the business of the employer.

Expanded Family Medical Leave

The Family and Medical Leave Act (“FMLA”) was expanded to provide paid and other protected leave to employees with a qualifying need related to a public health emergency regarding COVID-19 declared by a federal, state, or local authority. Some key aspects include:

• a. Expanding EFMLA coverage for coronavirus related leave to all employees who have been employed for at least 30 days; 
• b. Establishing EFMLA coverage for employees unable to work or telework due to a need to care for a son or daughter under 18 years of age whose school or place of care has been closed or the childcare provider is unavailable; and 
• c. Establishing that after an employee’s first 10 days of family and medical leave necessitated by a public health emergency related to COVID-19, the employee must be paid at a rate at least two-thirds of the employee’s regular rate of pay. Pay cannot exceed $200 a day or $10,000 in aggregate. The first 10 days of leave are unpaid.

The total amount of available family and medical leave to an employee under the EFMLA remains the same as under the FMLA (12 weeks in a 12-month period). Certain employees may qualify for both the paid sick leave and the EMFLA (for a total of 12 weeks). Also, employees may opt to substitute accrued paid leave during the first 10 days of unpaid EMFLA, under the regular FMLA provisions (29 U.S.C. § 2612(d)(2)(A) (allowing an employer to require an employee to use other accrued paid leave during FMLA leave)). Employees must provide notice to their employers as soon as practicable when the need for leave is foreseeable.

Tax Credits for Employers

Private employers covered under the FFCRA are able to claim tax credits of up to 100% of wages paid (up to the cap) for family medical leave and/or emergency sick leave under the FFCRA.

FAQs and Required Poster

The Wage and Hour Division of the U.S. Department of Labor (“DOL”) has issued guidance regarding FFCRA requirements It can be accessed HERE.

Additionally, on March 25, 2020, the DOL issued a poster regarding FFCRA rights. All covered employers should post or provide such poster to current employees. The poster should be placed in a conspicuous location on the employment premises, and if employees are working remotely, the poster may be e-mailed, direct-mailed, or posted on an employer’s website where employee information is accessible. The poster need not be in multiple languages at this time and is accessible HERE. 

The DOL has also released certain FAQs to assist with implementing and understanding the FFCRA.

Colodny Fass will continue to monitor the rapidly developing situation and will provide updates as appropriate. For further information, please contact Maria Elena Abate at Colodny Fass.

Be safe and continue to wash your hands!

Meet Maria Elena Abate

With more than 25 years of experience, Maria Elena Abate has built a reputation in employment and insurance law, and the application of governmental mandates. She represents employers of all sizes offering day to day guidance, risk management, dispute resolution, and litigation defense. A strong advocate for workplace diversity and inclusion, Ms. Abate serves on various non-profit boards and regularly provides D&I and compliance education to corporate professionals.