Families First Coronavirus Response Act: Employer Expanded Family and Medical Leave Requirements (FFCRA)
Congress passed new legislation to extend paid leave to employees and the President signed it on March 18, 2020. The new law is supposed to become effective April 2, 2020 (within 15 days of being enacted). The new provisions of the Families First Coronavirus Response Act (FFCRA) will be in effect until December 31, 2020. The FFCRA requires certain employers to provide extended family and medical leave for reasons relating to COVID-19. The new law’s paid leave requirements will be enforced by the Department of Labor’s Wage and Hour Division.
Requirements of FFCRA
The FFCRA makes it a requirement that all covered employers provide to all employees:
Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay if the employee is unable to work because they are quarantined and/or are experiencing COVID-19 symptoms.
Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because they have a bona fide need to care for an individual that is quarantined and/or is experiencing COVID-19 symptoms, or whose child’s (under 18 years old) school or care center is closed.
The FFCRA makes it a requirement that all covered employers provide to all employees that it has had employed for at least 30 days:
Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because they have a bona fide need to care for a child whose school or care center is closed for reasons relating to COVID-19.
What is a Covered Employer?
The FFCRA applies to certain public employers, and private employers with fewer than 500 employees. Title II of the FMLA was not amended by the FFCRA, so federal government employees are not covered; they are still covered by the paid sick leave provision in the FMLA.
What are Qualifying Reasons for Leave?
An employee qualifies for expanded family and medical leave under FFCRA if the employee is unable to either work or telework due to a need for leave because the employee:
Is subject to a quarantine or isolation order related to COVID-19.
It is not a certainty that Governor Newsom’s recent executive order to stay at home (or shelter in place) equates to a quarantine or isolation order. This is a determination that must be made interpreting the language of the new law and therefore, when an employee requests sick time to stay at home in compliance with the Governor’s current order it may not be necessary to pay this emergency sick leave yet for this particular reason.
Has been advised by their healthcare provider to self-quarantine because of COVID-19.
Is experiencing symptoms related to COVID-19 and is seeking treatment for it.
Is caring for an individual who is subject to quarantine or who has been advised to self-quarantine.
Is caring for a child whose school or care center is closed for reasons relating to COVID-19.
Small businesses with fewer than 50 employees may qualify for an exemption from the FFCRA if the requirements of the Act would jeopardize the sustainability of the business. The details of applying for such exemption are not yet known.
Is experiencing any other substantially-similar condition.
How Long is the Qualified Leave?
The duration of the expanded family and medical leave varies under FFCRA:
If an employee is asking for expanded leave for any of the above listed reasons other than caring for a child whose school or care center is closed, the employee is eligible for up to 80 hours of paid leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
If an employee is asking for expanded leave for caring for a child whose school or care center is closed, a full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours of leave that the employee is normally scheduled to work over that period.
How do I Calculate the Rate of Pay?
The calculation of pay varies for the different reasons the employee is asking for extended family and medical leave:
If an employee is subject to a quarantine or isolation order related to COVID-19, has been advised by their healthcare provider to self-quarantine because of COVID-19, or is experiencing symptoms related to COVID-19 and is seeking treatment for it, they shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
If an employee is caring for an individual who is subject to quarantine or who has been advised to self-quarantine, or the employee is experiencing any other substantially-similar condition, they shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
If an employee is caring for a child whose school or care center is closed for reasons relating to COVID-19, they shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave.)
Employer Requirements and Benefits
Employers have certain requirements under the FFCRA, and can also receive a tax benefit:
Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.
The employer must post a notice of FFCRA requirements in a conspicuous place in the workplace.
Employers cannot discriminate against any employee of theirs who takes expanded family and medical leave under the FFCRA.
Employers who violate the first two weeks’ expanded family and medical leave will be subject to the penalties and enforcement described in the Fair Labor Standards Act. Employers who violate the additional 10 weeks for expanded family and medical leave will be subject to the penalties and enforcement described in the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.