What Employers Need to Know about the Families First Coronavirus Response Act

On March 18, 2020, President Trump signed H.R. 6201, the Families First Coronavirus Response Act(“FFCRA”), into law. One of the goals of FFCRA is to provide aid to employees who have been impacted by the 2019 Novel Coronavirus (COVID-19). 

The employer-related provisions of FFCRA will become effective on April 2, 2020 and will last until December 31, 2020.

FFCRA in a Nutshell[1]:

There are three major components of FFCRA that will affect covered employers:

1.     The Emergency Paid Sick Leave Act (“EPSLA”) which provides that covered employers must provide paid sick leave to employees for certain COVID-19 illness related matters;

2.     The Emergency Family and Medical Leave Expansion Act (the “FMLA Expansion Act”) which expands the already existing Family and Medical Leave Act to require that covered employers provide job-protected leave to its employees if an employee needs to take extended leave from work as a result of certain COVID-19 related matters; and 

3.     Tax credits to employers which will compensate employers who pay family leave and sick pay wages under FFCRA by providing tax credits to the employer equal to 100% of the FFCRA wages paid by the employer against the employer’s share of the payroll tax for each employee.

Provision

EPSLA

FMLA Expansion Act[1]

Which employers are covered?

Private employers with less than 500 employees.

Private employers with less than 500 employees.[2]

Which employees are eligible?

All employees unable to work or telework, regardless of length of time of employment.

Any employee unable to work or telework and who has been employed for at least 30 calendar days.

How much time off is allowed?

80 hours for full-time employees, and an amount equal to the average number of hours the employee works over a 2-week period for part-time employees.

12 weeks

Under what circumstances is time off given?

If the employee cannot work due to any of the following:

The employee:

1.    is under a government- ordered quarantine or isolation order;

2.    has been advised by a healthcare provider to self-quarantine;

3.    is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4.    is caring for a quarantined individual;

5.    is caring for a minor child whose school or day care center has been closed due to COVID-19; or

6.    is experiencing any other condition similar to any of the above as specified by the Secretary of Health and Human Services.

If the employee requests leave to care for a minor child if the child’s school is closed or if the child’s day care provider is no longer available, but only if telecommuting is not an option for the employee.

What kind of pay will the employee receive?

The employee shall be paid whichever of the following is highest: his/her regularly paid wages, the federal minimum wage rate, or the state or local minimum wage rate.[3]

The first 2 weeks (10 days) is unpaid, with the remaining 10 weeks paid at 2/3 of the employee’s regular rate of pay.[4]

Is there a payment cap?

Yes, for any employee who is taking leave for his or her own care (i.e., reasons 1, 2, or 3 above), the maximum amount paid to such employee is $511/day and $5,110 total. For any employee who is taking leave for the care of another (i.e., reasons 4 or 5 above), the maximum amount paid to such employee is $200/day and $2,000 total.

Yes, $200/day and $10,000 maximum in total.

Is the employee’s job protected?

Yes

Yes, unless the employer employs less than 25 employees and cannot maintain the position because of conditions caused by the COVID-19 crisis, as long as the employer has made reasonable attempts to employ the employee in an equivalent position.[5]

[1] Note that this FMLA Expansion Act may apply to some employers that are not covered under the traditional FMLA law.

[2] Employers with less than 50 employees may be exempt from this provision if, as determined by the Secretary of Labor, “the imposition of such requirements would jeopardize the viability of the business as a going concern.”

[3] Employees cannot be required to use other leave benefits provided by the employer before using FFCRA benefits.

[4] An employee can choose to substitute any paid leave available to that employee for these first 10 unpaid days, including the paid sick leave the employee is eligible to receive under the EPSLA. If the employee’s regular rate of pay varies from week to week, the employer shall use a six-month average to calculate the number of hours to be paid.

[5] If the employee cannot be restored to an equivalent position, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available in the next year.

[6] Please note that this memo does not address the FFCRA provision regarding employers subject to multi-employer collective bargaining agreements.