FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 pandemic. The FFCRA generally applies to employers with fewer than 500 employees with some exceptions.

The FFCRA creates two new emergency leave benefits for eligible employees:

Emergency Paid Family and Medical Leave

Up to 12 weeks of Emergency Family Medical Leave (EFML) is available to employees who have been employed a minimum of 30 days and who are unable to work (or telework) because they need to care for their child whose school is closed, or whose childcare provider is unavailable because of a public health emergency. Additionally, the FFCRA provides that:

  • The first ten (10) days of EFML is unpaid, but employees may elect to substitute any of the employer’s other paid leave benefits during this period, e.g., paid vacation leave. After the initial unpaid ten (10) day period, employers must pay employees at least two-thirds of their regular compensation, up to a maximum of $200 per day or $10,000 in the aggregate.
  • Family and Medical Leave Act (FMLA) job protections apply to EFML, but there is an exemption for employers with fewer than 25 employees, where an employee’s position is eliminated because of economic slowdowns related to the declaration of a public health emergency and the employer attempts to restore the employee’s employment within a year.

Emergency Paid Sick Leave

Emergency Paid Sick Leave (EPSL) is available to all employees for immediate use, regardless of their length of employment. Employees may take EPSL for the following reasons:

  • An employee is subject to a federal, state, or local quarantine or isolation order due to COVID-19.
  • An employee has been advised by a healthcare provider to self-quarantine because of concerns related to COVID-19.
  • An employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • An employee is caring for an individual who is quarantined or advised by a healthcare provider to self-quarantine.
  • An employee is caring for a son or daughter if the school or place of care for the child has been closed, or the child care provider is unavailable, because of COVID-19 precautions.
  • An employee is experiencing any other, substantially similar condition, as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Additional Employee Protections

  • Full-time employees are entitled to 80 hours of EPSL, and part-time employees are entitled to EPSL in the amount equal to the average amount of hours they work over a two-week period.
  • There is no carryover of EPSL into the following calendar year, and employers are not required to pay out unused leave upon an employee’s separation from employment.
  • Employers must pay EPSL to employees in addition to any other leave benefits the employer offers, and employers may not require employees to use any other leave before using EPSL.
  • If an employee uses EPSL to care for himself or herself for reasons listed above, employers must pay the employee’s regular compensation, up to a maximum of $511 per day or $5,110 in the aggregate.
  • If an employee uses EPSL to care for a family member or for reasons listed above, employers must pay either two-thirds of the employee’s regular compensation or the minimum wage, whichever amount is greater. Employers must only pay up to a maximum of $200 per day or $2,000 in the aggregate.
  • Employers must post a Department of Labor notice about leave entitlements in a conspicuous location within the job site.

Employer Tax Credits

The FFCRA provides financial relief for employers in the form of tax credits on a dollar-for-dollar basis for EFML or EPSL payments to employees. The credit can be used to offset all federal income tax withholding from all employees (including those still working) and both the employer and employee portions of Social Security and Medicare taxes for all employees.

Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the applicable per diem (and aggregate) payment caps.

Enforcement

The Department of Labor has advised that it will provide a 30-day period for employers to come into compliance with the FFCRA. As a result, the Department of Labor will not bring an enforcement action against an employer for violations of the FFCRA, provided the employer has acted reasonably and in good faith to comply.

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 Department receives a written commitment from the employer to comply with the FFCRA in the future.