Leave Provisions of the Families First Coronavirus Response Act
Jack E. Cohoon, Esq.
Attorney at Law
The Families First Coronavirus Response Act, H.R. 6201, was signed into law on March 18, 2020. This law includes a broad array of policy responses across federal agencies to the coronavirus pandemic. This is a general overview of two parts of the FFCRA—the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act—which contain provisions that affect many employees’ rights to leave. The leave provisions of the FFCRA become effective on April 1, 2020 and will expire at the end of the year.
Read together, the two Acts that make up the FFCRA provide two weeks of paid leave for various situations related to COVID-19 (Emergency Paid Sick Leave) and potentially an additional ten weeks of leave for employees caring for their minor child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19 (Emergency FMLA). Employers with 500 or more employees are exempt, and small businesses with fewer than 50 employees can seek a waiver from the U.S. Labor Department for the requirement to provide leave to employees based upon childcare issues. The U.S. Department of Labor cannot waive the other leave requirements.
The state of the law is in flux, and the U.S. Department of Labor has not yet released regulations detailing how this law will operate. You should consult with an employment law attorney to determine whether and how these provisions apply in your situation.
Emergency Paid Sick Leave Act
Included in the FFCRA is the Emergency Paid Sick Leave Act (Emergency PSL Act). The Act applies to private employers with fewer than 500 employees and to government employers. Employers with over 500 employees are not covered because it is presumed that they provide at least this much paid leave to their employees.
The Act provides paid leave—up to 80 hours for full-time employees, or an amount equal to average pay for two weeks for part-time employees—for workers who must be absent from work due to a qualifying reason related to COVID-19.
Qualifying reasons for leave include:
- being subject to a quarantine or isolation order;
- being advised by a health provider to self-quarantine;
- experiencing symptoms or seeking a medical diagnosis;
- caring for an individual subject to a quarantine or isolation order or who is advised to self-quarantine;
- caring for a minor child whose school or place of care is closed, or whose childcare provider is unavailable due to COVID-19; or
- Experiencing “substantially similar” conditions to those above that may be covered in regulations to be issued by federal agencies.
There is a $511 per day and $5,110 aggregate cap for sick leave paid for employees who are absent due to their own quarantine order, instruction to self-quarantine, or symptoms or diagnosis. The cap is $200 per day and $2,000 in aggregate for leave for an employee to care for someone else.
For example, a full-time employee whose ordinary pay is $30 an hour and works 80 hours over two weeks (effectively $240 a day) would ordinarily make $2,400 over two weeks. If that employee was absent due to their own quarantine order, instruction to self-quarantine, or their own symptoms or diagnosis they would not hit either the daily cap ($511) or aggregate cap ($5,110) and would get paid full wages for up to ten days (two work weeks). However, if this same employee was absent to care for someone else (reasons 4 and 5, above), the lower hourly cap and total aggregate cap would apply and would result in the employee’s sick leave being limited to $200 a day, for a total of $2,000.
Employees cannot be required to find a replacement worker to fill their spot in order to take Emergency PSL.
Emergency PSL is on top of any other available leave that employees have accrued. Employees cannot be required to take other paid leave (PTO, annual leave, or sick leave under an employer policy) before being able to take Emergency PSL.
Paid sick time provided under this Act does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (Emergency FMLA Act) temporarily expands coverage of the FMLA to all private employers with fewer than 500 employees, with the possibility that employers with fewer than 50 employees may be able to obtain a waiver from the U.S. Department of Labor from the Act’s requirements.
Covered employers are required to provide up to ten weeks of paid family leave for employees who are unable to work (or telework) due to the need to care for their minor child because the school or place of care has been closed, or their child care provider is unavailable, due to COVID-19. Used in conjunction with Emergency PSL, a covered employee would receive paid leave for twelve weeks, total.
To be eligible for Emergency FMLA, an employee must have been employed with the employer for at least 30 calendar days before the date of the leave request.
The first ten days of Emergency FMLA are unpaid, though employees may choose to use any other types of leave they may have available, including Emergency PSL, above.
After the first ten days, the employer must pay two-thirds of the employee’s regular rate of pay, not to exceed $200 a day, or an aggregate cap of $10,000. For part-time employees or those who work irregular schedules, the remaining time must be paid based on the average number of hours the employee worked prior to taking Emergency FMLA.
For example, a full-time employee whose ordinary pay is $30 an hour and who works 40 hours a week (effectively $240 a day) would ordinarily make $1,200 a week. If the employee was required to care for a minor child due to a school closing, that employee would receive pay at a rate of $160 a day (2/3 of their rate of pay) for ten weeks, for total compensation of $8,000. They will not hit the $10,000 aggregate cap.
A full-time employee whose ordinary pay is $60 an hour and who works 40 hours a week (effectively $480 a day) would ordinarily make $2,400 a week. Two-thirds of the employee’s daily pay rate is $320, which still exceeds the $200 cap. That employee would only receive pay at a rate of $200 a day for ten weeks, when they would have reached the $10,000 aggregate cap.
Employers are generally required to restore employees to their previous positions after their Emergency FMLA leave ends. There are exceptions to this requirement for employers with fewer than 25 employees if the position no longer exists due to changes in the operating conditions of the employer caused by the public health emergency.
Employers may claim tax credits for reimbursement of the payment of Emergency Sick Leave or Emergency FMLA Leave under the Act each quarter, within the limits of the caps described above. They may also be eligible for credits for the cost of providing group medical plan coverage during their employees’ leave period. An immediate dollar-for-dollar offset against payroll taxes is available. Self-employed individuals may also receive a credit under these provisions. Employers should consult with their tax advisers to ensure these credits and deductions are handled correctly.
Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. They are eligible for Emergency PSL, however. Those federal employees covered by Title I may be eligible for both types of leave. Federal employees should check with their employees and the Office of Personnel Management about their eligibility.
Small Business and Health Care/First Responder Exceptions
The Secretary of Labor has authority to make regulations exempting small businesses with fewer than 50 employees from those portions of both Emergency Paid Sick Leave and Emergency FMLA involving caring for children whose school or child care provider is closed if the leave requirements would jeopardize the viability of the business as a going concern. The Secretary also has authority to make regulations exempting healthcare providers and emergency responders. No regulations have been released at this time.
Employers are required to post a notice, prepared and approved by the Department of Labor, of all the requirements of this Act. The Department has recently released free posters for Employers to print.
Employers are prohibited from retaliating against employees who pursue their rights under this Act, and violations can result in civil and criminal liability.
The effective date for the provisions of the FFCRA is April 1, 2020. It expires on December 31, 2020. The Act is not retroactive. That means that leave approved and taken before April 1 does not count toward Emergency PSL or Emergency FMLA under the Act, and it would not protect a worker’s position prior to or after that date.
The Provisions of the FFCRA Supplement Existing Law
The FFCRA is a federal law that supplements and does not replace employers’ legal obligations under existing laws such as the Family and Medical Leave Act, the Americans with Disabilities Act, and the Fair Labor Standards Act.
There are other state laws which provide protections to employees that may be affected by COVID-19. For example, South Carolina law provides that it is illegal to “fire, demote, or otherwise discriminate against an employee complying with an isolation or quarantine order” during a public health emergency, but that “nothing in this section prohibits an employer from requiring an employee to use annual or sick leave to comply with such an order.” S.C. Code Ann. § 44-4-530(E).
Workers who are out of work, even temporarily, due to COVID-19, but who are otherwise available to work, may be eligible for unemployment insurance benefits. Employers who have had to lay off employees due to COVID-19 can apply for benefits for their workers, as well. In South Carolina, applications are made through the website of the Department of Employment and Workforce.
Lastly, the most recent federal stimulus bill, the terms of which are still being fleshed out, will undoubtedly have significant effects on employers and employees. Watch our blog for more information about this quickly changing legal landscape.
Employment lawyers here to help
We know that times are tough and that there is uncertainty both in the law and in the world around us. Federal and state law and regulations are changing quickly as policymakers seek to address the challenges presented by COVID-19.
The attorneys of Burnette Shutt & McDaniel are available to help people and companies successfully navigate these challenging times. Call us at 803.850.0912 or visit burnetteshutt.law to set an appointment.
Jack E. Cohoon is Special Counsel at Burnette Shutt & McDaniel. He has nearly 14 years of experience helping clients find solutions to employment issues and other complex legal problems, including issues arising from previous natural disasters such as the 2015 floods and Hurricane Matthew. He has successfully represented clients in trial and appellate courts and before many state and federal administrative agencies.
Department of Labor: COVID-19 and the American Workplace (includes additional details about the FFCRA for employers and employees, questions and answers, and free posters)
Internal Revenue Service: Treasury, IRS and Labor announce plan to implement Coronavirus-related paid leave for workers and tax credits for small and midsize businesses to swiftly recover the cost of providing Coronavirus-related leave