Families First Coronavirus Response Act – New Paid Emergency Leave Requirements for Employers

by Sheila Gladstone, Sarah Glaser, and Emily Linn

On March 18, 2020, President Donald J. Trump signed into law the Families First Coronavirus Response Act (FFCRA). This new legislation provides a number of relief benefits in response to the COVID-19 global pandemic, including:

• making temporary additions to the Family and Medical Leave Act;
• requiring emergency paid leave for employees affected by COVID 19;
• providing free coronavirus testing;
• expanding food security initiatives;
• increasing Medicaid funding; and
• supplementing state unemployment insurance programs.

The provisions affecting employers have a broad reach, applying to private employers with fewer than 500 employees and all public employers, no matter how many employees they have.

If you are a covered employer under the FFCRA, you need to be aware of the new obligations under the Act, which became effective on April 1, 2020 and for which enforcement will begin on April 17, 2020.

Notably, the FFCRA provides paid benefits to employees who are unable to work due to COVID-19 related conditions. The FFCRA does not provide any benefits to employees who are out of work due to COVID-19 furloughs or layoffs (though such employees would be eligible for unemployment insurance benefits).

Specifically, the FFCRA created two new employer paid leave requirements:

First, there is the Emergency Family Medical Leave Expansion Act (EFMLEA).

The Act expands the coverage of FMLA to provide 12 weeks of paid job protected FMLA leave for employees who are unable to work due to care for a son or daughter if the child’s school or daycare is closed or the childcare provider is unavailable due to COVID-19. Under this new legislation, the employee need only be on payroll for 30 calendar days to qualify for the expanded FMLA leave.

The first ten days of this expanded FMLA leave are unpaid, though an employee can use paid sick leave under the EPSLA to cover this period or any other paid leave accrual (i.e., vacation, personal, sick leave, etc). The remaining ten weeks are paid at a rate equal to at least 2/3 the employee’s regular rate of pay, up to a maximum of $200/day or $10,000 total.

Significantly, the EFMLEA has not expanded the amount of total FMLA leave an employee receives, meaning that an employee is entitled to 12 weeks total of FMLA leave (whether traditional unpaid FMLA leave or the new expanded FMLA). If an employee already used up their 12 weeks for the year prior to April 1, 2020, they are ineligible for expanded FMLA to care for a child.

Second, is the Emergency Paid Sick Leave Act (EPSLA).

The Act provides for paid sick leave to employees who are unable to work because of COVID-19. Employers are required to give the following paid sick leave:

• Two weeks of paid sick leave at the employee’s regular rate of pay, capped at $511/day or $5,110 total for:
• employees who are subject to a quarantine or isolation order related to COVID-19;
• employees who have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
• employees who are experiencing COVID-19 symptoms and are seeking medical diagnosis.
• Two weeks of paid sick leave at a rate of at least 2/3 of the employee’s regular rate, capped at $200/day or $2,000 total for employees:
• caring for a family member who is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
• caring for their son or daughter whose school or daycare is closed or child care provider is unavailable due to COVID-19.

There are several discretionary exemptions built into the FFCRA:

First, there is a small business exemption for private employers with less than 50 employees. This exemption allows for a small business to opt out of providing certain paid sick leave under the EPSLA and expanded FMLA leave under the EFMLEA.

Second, both public and private employers can exempt health care providers and emergency responders from both the EPSLA and EFMLEA. For the purposes of the exemption, health care providers and emergency responders are defined broadly to encompass all employees that either directly or indirectly aid in providing medical services generally, and specifically, in caring for COVID-19 patients. For the full regulatory definitions, see the comprehensive FFCRA summary, linked below.

Employers have several options to recover all or a portion of the costs of providing paid leave under the FFCRA. For private employers, the FFCRA provides a refundable tax credit in an immediate dollar-for-dollar offset against payroll taxes for paid leave provided under the Act. Public employers may be able to apply for reimbursement of COVID-19 spending under the FFCRA through the recently-enacted CARES Act, or through other state or federal programs.

One final note: while these new paid leave benefits are significant, and employers need to understand their present obligations under the FFCRA, they are not permanent. Rather, the FFCRA created a sunset date of December 31, 2020 for both the paid sick leave and expanded FMLA leave.

For more information on the FFCRA, click to view the comprehensive summary of the Act, incorporating the Department of Labor’s regulations and guidance prepared by Lloyd Gosselink’s Employment Law Practice Group. https://bit.ly/2VnvgMh

This summary was prepared by the Firm’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Emily Linn. If you would like additional information related to this article, please contact Sheila at 512.970.5815 or sgladstone@lglawfirm.com, Sarah at 512.221.6585 or sglaser@lglawfirm.com, or Emily at 214.755.9433 or elinn@lglawfirm.com.