The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with paid sick leave. Additionally, expanded family and medical leave for specified reasons related to COVID-19. Administrating and enforcing the new law’s paid leave requirements falls on The Department of Labor’s (Department) Wage and Hour Division (WHD). These provisions will apply from the effective date through September 30th, 2021 (extended from December 31st, 2020).
Generally, the Act provides that covered employers must provide to all employees:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay when the employee is unable to work because the employee is quarantined (under Federal, State, or local government order or advice of a health care provider), and experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds of the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (under Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19. The employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services in consultation with the Secretaries of the Treasury and Labor.
A covered employer must provide to employees that it has employed for at least 30 days:
- Up to an additional ten weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate of pay. This is when an employee is unable to work due to a need to care for a child. This includes the school being closed or childcare provider is unavailable due to COVID-19.
Covered Employers
The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain employers. This applies to companies with fewer than 500 employees. Most federal government employees are covered by Title II of the Family and Medical Leave Act. This was not amended by this Act. They are, therefore, not covered by the expanded family and medical leave provisions of the FFCRA. However, the paid sick leave provision covers federal employees covered by Title II of the Family and Medical Leave Act.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability. This is if the leave requirements would jeopardize the viability of the business as a going concern.
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee is:
- subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- being advised by a health care provider to self-quarantine related to COVID-19;
- experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- caring for a child whose school or place of care is closed for reasons related to COVID-19;
- experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services in consultation with the SLT.
- obtaining COVID-19 immunization
- recovering from any injury, disability, illness, or condition related to COVID-19 immunization.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
Duration of Leave:
For reasons (1)-(4), and (6): A full-time employee is eligible for up to 80 hours of leave. A part-time employee is suitable for the number of hours of leave that the employee works over two weeks.
For a reason (5): A full-time employee is eligible for up to 12 weeks of leave. This is at 40 hours a week. A part-time employee is eligible for leave for the number of hours the employee is scheduled to work.
Calculation of Pay:
For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage. They will be paid whichever is higher, up to $511 per day and $5,110 in the aggregate (over two weeks).
Reasons (4) or (6): employes taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage. They will be paid whichever is higher, up to $200 per day and $2,000 in the aggregate (over two weeks).
For leave reason (5): employees that take leave will be paid at 2/3 their regular rate or 2/3 the applicable minimum wage. They are paid whichever is higher, up to $200 per day and $12,000 in the aggregate. Accordingly, aggregate is over 12 weeks. Two weeks of paid sick leave followed by up to 10 weeks of paid family and medical leave.
Tax Credits: 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. Furthermore, this must be 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. For more information, please see the Department of the Treasury’s website.
Employer Notice:
Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.
Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Penalties and Enforcement: Employers violating the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Additionally, employers in violation of the provisions providing up to an additional ten weeks of paid leave to care for a child whose school or place of care is closed (or whose child care provider is unavailable) are subject to the enforcement provisions of 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. As long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied, the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
If you have any questions about the FFCRA, contact us. We can make this easier for you and your business!
