As COVID-19 cases increase, employers may be getting more requests for leave under the Families First Coronavirus Response Act (FFCRA), the federal law passed in March that requires employers to provide paid leave to employees for certain COVID-19-related reasons. Additionally, some employers who were shut down when the new law passed may get FFCRA requests for the first time but not be familiar with the law. Here’s a quick refresher on the basics of the new FFCRA leaves.
What Does the FFCRA Require?
The FFCRA created two new leave provisions — Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA). Eligible employees may take two weeks (up to 80 hours) of EPSL if the employee is unable to work or telework for any of the following qualifying reasons:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Caring for an individual who is subject to a government quarantine or a self-quarantine advised by a health care provider (reasons 1 and 2 above);
- Caring for their child if the child’s school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions; or
- Experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services.
Additionally, using qualifying reason five above, eligible employees may take up to twelve weeks of EFMLA for school/day care closures.
The full two weeks of EPSL is paid leave while the first two weeks of EFMLA may be unpaid with the remaining time, up to ten weeks, paid.
The FFCRA requires employers to pay employees their regular rate for reasons one through three above, with a cap at $511 per day. For reasons four through six, employees are entitled to two-thirds of their regular rate, with a cap at $200 per day. The act also provides employers a tax credit for the full amount of paid leave provided.
Is My Business Covered?
The FFCRA applies to employers with fewer than 500 employees. Even businesses not ordinarily subject to the Family and Medical Leave Act (FMLA), which applies to businesses with 50 or more employees, are covered under the FFCRA.
Although large employers with 500 or more employees aren’t subject to the FFCRA, local ordinance or executive order may require those employers to provide paid sick leave for COVID-19-related reasons that is similar to the FFCRA.
Which Employees Are Eligible for EPSL and EFMLA?
All employees are eligible for EPSL.
Employees are eligible for EFMLA if they’ve been employed for at least 30 days. Again, this is different from traditional FMLA, which requires an employee to have worked at least 1,250 hours over 12 months.
Health care providers and emergency responders may be excluded from FFCRA leaves.
Since the FFCRA took effect, the U.S. Department of Labor (DOL) published regulations and guidance providing more detail on its requirements, including calculation of hours and rates of pay, FFCRA documentation, how to claim the tax credits, qualifying reasons for leave (e.g., what constitutes a quarantine or isolation order and how the law applies to summer programs/camps), and many other issues. The DOL has also just released a new eligibility tool to help determine when the leaves apply.
Employers will likely see an increase in leave requests this fall if COVID-19 cases continue to rise and we get closer to the act’s expiration at the end of the year. Remember, the DOL construes the act broadly and encourages employers to be flexible in working with employees on leave issues, so employers should be cautious and consult with legal counsel before denying leave.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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