FFCRA Recap and Updates

As we previously posted, the Families First Coronavirus Response Act (“FFCRA” or “Act”), provides for emergency paid sick leave and expanded Family and Medical Leave Act (“FMLA”) leave. The FFCRA went into effect on April 1, 2020. Since then, additional guidance published by the Department of Labor has provided some clarification on the applicability of Act—including clarifying the definition of “health care provider” for purposes of exemption from the Act—so we’re providing this recap and update to our previous posts.

FFCRA Overview: The FFCRA requires employers who employ fewer than 500 employees in the United States (“Covered Employers”) to provide two types of leave for certain COVID-19 related reasons: 1) emergency paid sick leave and 2) expanded leave under the FMLA. Employers who are required to pay for leave under the Act are entitled to dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the Act. Small Employers (those with fewer than 50 employees) whose businesses would be jeopardized as going concerns if they were required to comply with the paid leave provisions are exempt from the requirements of the FFCRA.

In Detail:

Emergency Paid Sick Leave:

Covered Employers are required to give employees up to 2 weeks (10 working days) paid leave at the employee’s regular rate of pay (up to $511 per day / $5,110 per 2-week period) if:

• the employee is unable to work or telework because of any of the following:

• the employee has been advised by a health care provider to self-quarantine.
  • for purposes of this provision, a “health care provider” is a licensed doctor, nurse practitioner, or other health care provider as defined in the FMLA (Department of Labor definitions found here). Please note that a different definition of “health care provider” applies when determining whether a health care provide is exempt from the FFCRA, as set forth below.
• the employer may require written confirmation of the health care provider’s order.
• the employee is quarantined under a local, state, or federal order.
• the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

Covered Employers are required give employees up to 2 weeks (10 workings days) paid leave at 2/3 the employee’s regular rate of pay (up to $200 per day) if the employee is unable to work due to:

• a bona fide need to care for an individual subject to quarantine (either by a health care provider or government order).
• the need to care of a child (under 18 years old) whose school or child care provider is closed or unavailable for COVID-19 related reasons.
• a “substantially similar condition” if specified by the federal government.

These provisions apply to all employees of Covered Employers, including:

• employees on leave;
• temporary employees jointly employed by the Covered Employer and another employer, regardless of which employer maintains the employees on its payroll); and
• day laborers supplied by a temporary employment agency (regardless of whether the employers is the agency employer or the hiring employer).

Independent contractors are not included.

Part-time employees are entitled to pay for number of hours that the employee is normally scheduled to work during the period or for the average number of hours the employee works in a two-week period.

An employer may not require an employee to use accrued time off in lieu of Expanded Paid Sick Leave.

Expanded Family and Medical Leave Act (“FMLA”) leave:

The FFCRA also requires Covered Employers to provide additional leave to employees who have been employed for at least 30 days:

• Such employees are entitled to up to an additional 10 weeks of paid expanded FMLA leave if:
  • the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable due to COVID-19.
• Leave is paid at 2/3 their regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 total (over a 12-week period).

Under the FFCRA, an employee may take up to 12 weeks of expanded FMLA but the first 2 weeks would be unpaid. If an employee takes 2 weeks of Emergency Paid Sick Leave, the employee is only entitled to an additional 10 weeks of paid leave under the expanded FMLA. If there is a gap between the Emergency Paid Sick Leave and expanded FMLA leave, the first 2 weeks of the expanded FMLA leave will be unpaid (but the employee may elect to use accrued time off).

An employer may not deny Emergency Paid Sick Leave even if an employee already took leave under the expanded FMLA before April 1, 2020.

The expanded FMLA does not affect leave taken under the original FMLA. However, if an employee has already taken original FMLA leave, the employee is not entitled to an additional 12 weeks of leave—an employee is entitled to a total of 12 weeks’ leave under both the expanded FMLA and the original FMLA.

Exemptions from FFCRA requirements:

Small Employers whose businesses would be jeopardized by compliance with the FFCRA are exempt if:

• providing leave would cause the Small Employer’s expenses and financial obligations to exceed available business revenue and cause the Small Employer to cease operating at minimal capacity;
• the absence of the employee(s) requesting leave would pose a substantial risk to the financial health or operating capacity of the Small Employer because of the employee’s specialized skills, knowledge, or responsibilities; or
• the Small Employer is unable to find enough able, willing, qualified, and available workers to replace the employee during the leave period and the employee’s labor or services are needed for the Small Employer to operate at minimal capacity.

Employers of health care providers and emergency responders may elect to exclude these employees from eligibility for leave.

• for purposes of this exclusion, employees of all of the following businesses, institutions, and facilities are considered “health care providers”:
  • doctor’s offices, hospitals, health care centers, and clinics;
  • post-secondary educational institutions offering health care instruction;
  • medical schools;
  • local health departments and agencies;
  • nursing facilities, nursing homes, and home health care providers;
  • retirement facilities;
  • any facility that performs laboratory or medical testing;
  • pharmacies; and
  • “any individual employed by an entity that contracts with any of” the above employers “to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility.”
• to the extent not included in the above, a “health care provider” also includes anyone employed by any entity that:
  • provides medical services;
  • produces medical products; and/or
  • is involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
• employees of all of the following institutions and facilities are considered “first responders”:
  • military or national guard;
  • law enforcement officers and correctional institution personnel;
  • fire fighters, emergency medical services personnel, physicians and nurses;
  • EMTs and paramedics and 911 operators;
  • public health personnel and emergency management personnel;
  • child welfare workers and service providers; and
  • public works personnel.

How long is the FFCRA in effect?

These provisions are currently in effect until December 31, 2020.

For additional information, click here.