Overview of the Families First Coronavirus Response Act (FFCRA): Emergency Paid Sick Leave and Emergency Family and Medical Leave

Overview of the Families First Coronavirus Response Act (FFCRA): Emergency Paid Sick Leave and Emergency Family and Medical Leave

This bill became federal law when signed by the President on March 18, 2020.  The law requires employers with 500 or fewer employees to provide paid leave to those who cannot work or telework due to circumstances surrounding the coronavirus (C-19) pandemic.  Here is an overview of key points:

• FFCRA went into effect on April 1, 2020 and will sunset on December 31, 2020.  FFCRA is not retroactive.
• The law applies to private employers with “500 or fewer employees,” as well as all public employers.
• Small private businesses with fewer than 50 employees may be exempt from certain paid leave requirements if providing such leave would jeopardize the viability of the business as a going concern.
• FFCRA creates two kinds of paid sick leave – Emergency Paid Sick Leave (EPSL) and leave taken under the Emergency Family and Medical Leave Expansion Act (E-FMLA).
• Tax credits are available to employers under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help offset the cost of these new employee benefits.  For more information on the CARES Act, please see the related article on this webpage titled “CARES Act Overview.”

Emergency Paid Sick Leave Act (EPSLA)

Up to eighty (80) hours of EPSL is available for employees who cannot work or telework due to one of six medical care or quarantine reasons related to the C-19 public health emergency.  EPSL is not available for medical reasons unrelated to the C-19 emergency.

• The six qualifying reasons are:

• 1. The employee is subject to a quarantine or isolation order related to C-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to C-19.
  3. The employee is experiencing symptoms of C-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2.
  5. The employee is caring for a minor child because the child’s school or place of care is closed, or the child’s childcare provider is unavailable, due to C-19 precautions.
  6. The employee is experiencing any other substantially similar condition as determined by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

• If an employee is furloughed or if an employee’s work hours are reduced by the employer, EPSL cannot be used for the hours the employee is no longer scheduled to work.
• Full-time employees are entitled to 80 hours of EPSL, and part-time employees are entitled to an amount of EPSL based on the average number of hours worked over a two-week period.  EPSL is in addition to other paid sick leave provided, e.g., through an existing company PTO policy.
• If an employee is sick, EPSL is paid at the employee’s regular rate of pay, capped at $511 per day and $5,110 in the aggregate.
• If an employee is caring for another, EPSL is paid at 2/3 the employee’s regular rate of pay, capped at $200 per day and $2,000 aggregate.
• EPSL is available immediately to all employees, regardless of the hours or length of time the employee has been employed.  Employers may not require that employees use other paid leave first.
• If an employee cannot telework, EPSL for qualifying reason numbers 1-4 and 6 above, must be taken in full-day increments and cannot be taken intermittently.  If an employee can telework or if EPSL is taken for qualifying reason number 5 above, the employer may (but is not required to) permit the employee to take EPSL intermittently.
• Employers cannot terminate or otherwise take adverse action against an employee because they take EPSL.  An employee on EPSL has the right to be restored to his same or similar position, subject to certain limitations, but is not protected from employment actions that would have happened regardless of whether the employee took EPSL.
• Employers must post a notice of EPSL rights where other workplace posters are located. The Department of Labor has published a model notice available for download here.

Emergency Family and Medical Leave Expansion Act (E-FMLA)

E-FMLA job-protected leave is available to employees who cannot work or telework because they need to care for their minor child due to school closure or other lack of childcare caused by the C-19 public health emergency.

• Unlike existing FMLA leave, ALL employers with 1 to 500 employees must provide E-FMLA leave, and an employee need be employed only 30 days to be eligible.
• E-FMLA leave begins with 10 days (the equivalent of 2 work weeks) of unpaid leave followed by paid leave at 2/3 the employee’s regular rate of pay, capped at $200/day and $10,000 in the aggregate.
• Employees are still limited to 12 weeks of FMLA-qualifying leave – including E-FMLA – within a one-year period.  This limit includes FMLA already taken by an employee.
• Employees may elect – but cannot be required – to use any paid leave or EPSL in lieu of the unpaid first ten days of E-FMLA leave.  Note that EPSL may be taken in addition to the 12 total weeks of FMLA and E-FMLA leave.
• Employers cannot terminate or otherwise take adverse action against an employee because they take E-FMLA.  An employee on E-FMLA has the right to be restored to his same or similar position, subject to certain limitations, but is not protected from employment actions that would have happened regardless of whether the employee took E-FMLA leave.

For more information about the Families First Coronavirus Response Act, Emergency Paid Sick Leave Act, Emergency Family and Medical Leave Expansion Act, or about any of the new developments in employment-related laws created in response to the COVID-19 crisis, please refer to the HGRS LLP Coronavirus (COVID-19) Resource Center, at www.hgrslaw.com, or contact our firm at (404) 442-8776.