The Families First Coronavirus Response Act (the “Act” or “FFCRA”) applies to employers with fewer than 500 employees. The Act also allows the department of labor to exempt small businesses with fewer than 50 employees when such requirements would jeopardize the business as a going concern. The department should be forthcoming with how to request such an exemption. The Act goes into effect on April 2, 2020 and the right to take this leave expires on December 31, 2020.
Generally, the Act provides that employees of covered employers are eligible for:
- 14 days of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- 14 days of expanded family and medical leave at two-thirds 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 or to care for a child whose school or child care provider is closed due to COVID-19; and
- Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, 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 due to COVID-19.
The Act may cause some confusion given the perceived overlap of bullet points #1 and #2 with #3. But, as an inclusive summary, please note that all employees of covered employers are eligible for 14 days of expanded family and medical leave for reasons related to COVID-19 pursuant to bullet points #1 and #2. This paid sick leave is in addition to any paid sick leave already offered by an employer.
At the same time, Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19. But, unlike the leave provided under bullet points #1 and #2, under bullet point #3 the first 14 days for which an employee takes leave may consist of unpaid leave. At the same time, the employee may substitute vacation, personal or sick leave for same. Regardless of any substitution by the employee, after that 14-day time period, the employer must provide paid leave for each day of leave that an employee takes for this additional 10-weeks as provided for under bullet point #3.
The following is from the Department of Labor’s website and provides examples of how to apply the leave required under the Act:
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for expanded family and medical leave 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;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or 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 80 hours of 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.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Calculation of Pay:
For leave reasons (1), (2), or (3): employees taking leave are entitled to pay 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).
For leave reasons (4) or (6): employees taking leave are entitled to pay 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).
For leave reason (5): employees taking leave are entitled to pay 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)
If you have any questions about the impact of The Families First Coronavirus Response Act or other legal implications of COVID-19 for you or your business, please contact the Nason Yeager team. We are here to help in navigating through these difficult and unprecedented times.