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Families First Coronavirus Response Act (FFCRA): What Employers & Employees Need to Know

Families First Coronavirus Response Act (FFCRA): What Employers & Employees Need to Know

Posted on Posted in Business Formation & Transactions, Labor & Employment

In response to the crisis caused by the COVID-19 pandemic, Congress enacted the Families First Coronavirus Response Act (FFCRA). There are two major components of the Act that both employers and employees should be aware of: (1) The Emergency Family and Medical Leave Expansion Act and (2) the Emergency Paid Sick Leave Act. This article is a brief summary of the most relevant provisions of the FFCRA; not every detail of the FFCRA is discussed herein. Please contact our firm if you have any specific concerns about the applicability of the FFCRA or its requirements.

EMERGENCY FAMILY MEDICAL LEAVE ACT (“EFMLEA”) 

What does the Act do? The EFMLEA amends and expands the Family Medical Leave Act of 1993 (“FMLA”) to provide partially paid leave to employees who cannot work or telework because they must care for a minor child whose school is closed or for whom childcare is unavailable due to COVID-19. Employers must provide 12 weeks of paid leave to an eligible employee and must hold the employee’s position during that 12-week time period.

How long is the Act effective? The Act is effective from April 1, 2020 through December 31, 2020.

Which employers does the Act apply to? The Act applies to all employers who employer fewer than 500 employees.

Which employees are covered? Employees who have been working for at least 30 calendar days.

How much pay does the employee receive? The first 10 days (2 weeks) of leave may be unpaid. An employee may substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. After that, an eligible employee is entitled to be paid an amount that is not less than two-thirds of his or her regular rate multiplied by the employee’s regular daily hours. Payment shall not exceed $200 per day or $10,000 in the aggregate over the 12-week period.

Are there any exemptions from the Act? Yes. Employers with fewer than 50 employees are exempt from paid leave requirements if compliance with the requirements would jeopardize the viability of the business as a growing concern. Additionally, employers with fewer than 25 employees are not required to hold an employee’s position if all of the following conditions are satisfied:

  • The employee takes leave under EFMLEA.
  • The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that (1) affect employment and (2) are caused by COVID-19.
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent benefits, pay, and other terms and conditions of employment.
  • If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the one-year period beginning on the earlier of the date on which the need for paid leave ends or the date that is 12 weeks after the date on which the employee’s leave commenced.

 EMERGENCY PAID SICK LEAVE ACT

What does the Act do? The EPSLA requires an employer to provide paid leave to an employee who is unable to work or telework for any of the following reasons:

  • Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for someone who is.
  • Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 or is caring for someone who has been so advised.
  • Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  • Employee is caring for his or her minor child whose school is closed or for whom childcare is unavailable due to COVID-19.
  • Employee is experiencing any other substantially similar condition specified by certain federal agency leaders.

How long is the Act effective? The Act is effective from April 1, 2020 through December 31, 2020.             

Which employers does the Act apply to? The Act applies to private employers who employ fewer than 500 employees and public employers who employ more than one employee. However, employers of health care providers or emergency responders may elect exclude employees from paid sick leave benefits.

Which employees are covered? All current employees are entitled to this benefit, except for health care providers or emergency providers whose employers have opted out of this requirement. There is no minimum employment period for the EPSLA.

How much paid leave is required? Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to a number of hours equal to the average hours the employee would work over a two-week period. An employer may not require an employee to exhaust other paid leave provided by the employer before the employee uses EPSLA leave.

How much pay does the employee receive? For an employee with a consistent work schedule, the pay rate is calculated by multiplying the number of hours the employee would otherwise normally be scheduled to work by the employee’s regular rate or minimum wage, whichever is greater. For employees directly affected by COVID-19, pay is capped at $511 per day or $5,110 in the aggregate. However, if leave is due to an employee caring for someone else or if the employee is merely experiencing a “substantially similar condition”, then the applicable rate of pay is only two-thirds of the calculated amount and pay is capped at $200 per day or $2,000 in the aggregate.

For a part-time employee whose schedule varies from week to week such that the employer cannot determine with certainty the number of hours the employee would have worked if he or she had not taken sick leave, then the pay is calculated by multiplying the applicable rate by a number equal to the average number of hours the employee was schedule per day over the 6-month period ending on the date on which the employee took paid sick leave, including hours for which the employee took leave of any type. If the employee did not work during the 6-month period, then the rate of pay is multiplied by the employee’s reasonable expectation of normal daily hours at the time of hiring.

Anything else I should know? Yes. An employer is prohibiting from requiring, as a condition of providing paid sick leave, that the employee find a substitute employee for the period of leave.

If you have any questions or concerns about how the FFCRA applies to you, please give us a call.