As everyone is probably well aware by now, the Families First Coronavirus Response Act (the “FFCRA” or the “Act”) was signed into law by President Trump as one of the first sweeping legislative actions in response to the ongoing COVID-19 pandemic. The FFCRA goes into effect April 1, 2020 and will remain in effect through the end of the year. However, what many people are left asking in the face of tomorrow’s effective date is, “Does the FFCRA affect me or my business?” The answer is likely, yes. For that reason, it is imperative that companies familiarize themselves with the provisions of the FFCRA.
At its core, the FFCRA applies to all private sector employers with fewer than 500 employees (as well as certain public sector employers) and does two major things: (1) it provides eligible employees up to two weeks of fully or partially paid sick leave for COVID-19 related reasons (discussed below); and (2) provides employees eligible up to an additional ten weeks of partially paid expanded family and medical leave. I’ll address the employee threshold and potential small business exemptions later, but first, let’s discuss what is actually required under the FFCRA.
As mentioned, there are two portions of the FFCRA: the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act. With respect to the paid sick leave entitlements, employers are now required to pay covered employees up to two weeks (either 80 hours for full-time employees, or a part-time employee’s two-week equivalent) of paid sick leave based upon the higher of the employee’s regular rate of pay, or the applicable state or federal minimum wage. Where an employee is unable to work or telework because he/she is subject to a quarantine or isolation, has been advised by a health care provider to self-quarantine, and/or is experiencing COVID-19 symptoms and is seeking a medical diagnosis, the employer is required to pay 100% of the rate of pay (or up to $511 daily and $5,110 total) for up to two weeks. On the other hand, where an employee is unable to work or telework because he/she is caring for another individual subject to one of the preceding isolation or quarantine orders or if the employee is caring for his/her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons, the employer is required to pay 2/3 of the rate of pay (or up to $200 daily and $2,000 total).
Under these paid sick leave provisions, all employees – regardless of length of employment – are eligible for the leave. Also, the paid sick leave allotment provided for in the FFCRA is in addition to whatever sick leave is already offered by employers (including subject to state or local requirements). To that end, an employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick time under the Act.
With respect to the Emergency Family Medical Leave Expansion Act portion, this provides up to twelve (12) weeks – in the aggregate – of job-protected paid leave for employees who are unable to work or telework for covered COVID-19 related reasons. Unlike the paid sick leave provisions, the only item that is covered under this portion is where an employee is unable to work or telework because he/she must care for his/her children where the schools are closed or place of care is unavailable because of a public health emergency.
For these employees, following ten days unpaid (presumably dovetailing with the paid sick leave benefits set forth above), employees can be eligible for up to an additional 10 weeks of partially paid expanded coverage payable at 2/3 of the employee’s regular rate (or up to $200 daily or up to $10,000 more in the aggregate). Unlike the paid sick leave portion, this leave benefit only covers employees who have been working for at least 30 calendar days.
As mentioned previously, the overall FFCRA applies to all companies with fewer than 500 employees. In other words, many companies who may not have previously been required to follow traditional Family and Medical Leave Act (“FMLA”) requirements by virtue of having 50 or fewer employees are now required to provide employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. That said, there is an exemption for small businesses with fewer than 50 employees pending regulations issued by the Department of Labor (“DOL”). While the regulations themselves have not yet been issued, the DOL has released some guidance to small businesses.
With this guidance, the DOL has stated that such small businesses are exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. To meet this requirement, an authorized officer of the business must determine that one of the three following scenarios exist:
- The expanded leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee(s) requesting said leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting expanded leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Notably, this small business exemption only applies to leave related to school closures and child care unavailability. It does not apply to other types of paid sick leave under the Act.
Just like the COVID-19 pandemic itself, the landscape is changing quickly. New regulations will be issued and more guidance and clarifications are sure to follow. That said, this summary of the FFCRA will provide the basic information to educate and prepare your business for the key provisions. Should you have any questions about the FFCRA or if you need any assistance with other matters related to COVID-19 impacts on the workplace, please feel free to contact the DSV Labor & Employment Group or reach out directly to me (cdrewry@DSVlaw.com), Dan Drewry (ddrewry@DSVlaw.com), or Melanie Dunajeski (mdunajeski@DSVlaw.com).