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Families First Coronavirus Response Act

The Families First Coronavirus Response Act  (FFCRA) requires certain employers to provide employees with emergency paid sick leave and expanded emergency family and medical leave (FMLA) for specified reasons related to COVID-19. The effective dates are April 1, 2020 through December 31, 2020. The following paragraphs outline the key provisions of the FFCRA.

All private sector employers with fewer than 500 employees, as well as certain public employers, are required to follow the FFCRA. Note that small businesses with 50 or fewer employees may be granted an exemption from the FFCRA if the requirement to provide leave would jeopardize the ability of the business to continue its operations. An election must be made to be exempted from the FFCRA, including documentation supporting why opting out is necessary. It is not clear at this time what documentation exactly is required in order to request the exemption. We will provide an update once additional clarification is provided.

Emergency Paid Sick Leave provides two weeks (up to 80 hours) of paid sick leave when an employee, no matter how short a period of time the employee has been employed, is unable to work due to being quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.

Two weeks (up to 80 hours) of paid sick leave will also be available at two-thirds the employee's regular salary in the event the employee must care for an individual subject to quarantine or must care for a child under 18 years of age whose school or place of childcare is not available due to COVID-19.

Emergency FMLA provides an additional 10 weeks of paid, expanded family and medical leave at two-thirds the employee's regular rate of pay. In this situation, the employee must have been employed for at least 30 calendar days and be unable to work due to a bona fide need to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.

It is very important to note one apparent carve-out to these 
provisions. If the employer closes the worksite due to a lack of business or because it is required to close pursuant to a federal, state, or local directive, the employer would not be required to pay, and the employee would not be eligible to receive, either of these emergency benefits. In that case, the employee should pursue ordinary unemployment benefits which have also been strengthened and expanded in the CARES Act which was signed into law by President Trump on March 27, 2020.

For employers who must follow these guidelines, a refundable paid sick leave credit and a refundable paid childcare leave credit will be available to assist in paying for these benefits to employees. Employers must collect documentation as specified in applicable IRS forms, instructions, and information, which, as of March 30, 2020, are not yet available.

For employees , several examples are given as justifying reasons for receiving these emergency benefits. The employee:

  1. is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.


 

Note that telework, the ability to continue performing one's job remotely, generally negates one's eligibility for these benefits. If an employee is unable to perform her work due to one of the provisions listed just above, then she would be eligible for the emergency benefits.


 

Intermittent leave is also available while teleworking if the employer agrees. In this instance, emergency FMLA or emergency paid sick leave would be available to the employee. Any agreed-upon increment of time or time of day is acceptable. For example, a 90-minute increment from 1:00 PM - 2:30 PM daily could be carved out to care for a child whose childcare provider is not available, or school is closed, due to reasons related to COVID-19 as indicated above. The employee would then be able to return to work their regularly scheduled hours.

Note that intermittent leave only applies in teleworking situations. For those whose job requires physical presence at a job site, emergency paid sick leave must be taken in full-day increments.

Although this Act has been passed, additional clarification from the Department of Labor will continue to come out as these rules are implemented. We will continue to review these details and provide updates as soon as possible. As always, please feel free to reach out to us with any questions you may have.