The Families First Coronavirus Response Act (FFCRA) – 29 USC 2601

The FFCRA was signed into law on March 18, 2020 and has many implications for businesses and individuals by providing for Emergency Paid Sick Leave and Emergency Family Medical Leave.

By April 1, 2020, Employers are required to post a notice of employee’s rights in a conspicuous location at work sites, their websites, or send the notice to all employees by mail or email. The notice is free to download and print on the U.S. Department of Labor’s website.

Emergency Paid Sick Leave

Under the Act, all employers with fewer than 500 employees MUST allow an employee to take Emergency Paid Sick Leave (EPSL) if the employee is quarantined, a doctor advises the employee to self-quarantine, or the employee has symptoms and is awaiting diagnosis. Employees may also use EPSL to care for an individual under quarantine or medical self-quarantine, OR if the employee is caring for a child whose school or place of care has been closed or is unavailable due to pandemic precautions.

Full-time employees are permitted to take up to 80 hours of EPSL and part-time employees may take up to the number of hours they work in an average two-week period, but Employers are not required to pay unused EPSL if the employee’s employment ends.

The employee taking Emergency Paid Sick Leave MUST be paid at their regular rate of pay, up to a maximum of $511 per day or $5,110 in total. If EPSL is taken to care for a child, the employee must be paid at their regular rate of pay up to a maximum of $200 per day.

An employer CANNOT: require an employee to find a replacement worker to cover their shift, require an employee to take other paid vacation, paid sick leave, or paid personal leave before taking EPSL. EPSL must be in addition to any benefits that employees already accrue and EPSL cannot reduce existing employee benefits or rights.

Employers are entitled to receive tax credits to offset the cost of providing employees with EPSL and act as a dollar-for-dollar reduction to the employer’s portion of social security tax. Even self-employed individuals are entitled to take a credit against their self-employment tax.

Emergency Family Medical Leave

Under the Act, all employers with fewer than 500 employees MUST allow Emergency Family Medical Leave (EFML) if an employee cannot work or telework because the employee needs to care for a child under the age of 18, and the child’s school or place of care is either closed or unavailable due to the public health emergency.

An employee may take up to 12 weeks of EFML, however if the employee has already taken 12 weeks of leave under the FMLA within the last 12 months is not eligible for an additional 12 weeks of EFML, but such employee could still be eligible for the two weeks of EPSL.

The first 10 days of EFML may be unpaid, but the employee must be allowed to use accrued paid leave in order to be paid during the first 10 days. After the first 10 days, the employer MUST pay the employee at least two-thirds of the employee’s usual rate of pay for their usual number of scheduled hours. If the employee’s hours vary, then the employee’s usual number of scheduled hours must be based on the employee’s average scheduled hours during the last 6 months. The maximum required pay is $200 per day or $10,000 total to the employee.

After returning from EFML, the employer must restore the employee to the employee’s former position. However, an employer with fewer than 25 employees need not restore the employee to their former position if the position no longer exists, although if the position is restored to exist before the earlier of 12 months or the end of the public health emergency, than the employee must be restored to that position.

Employers are entitled to receive tax credits to offset the cost of providing employees with EFML and act as a dollar-for-dollar reduction to the employer’s portion of social security tax.

Possible Exemption

Small business with fewer than 50 employees may qualify for exception from the requirement to provide leave due to school closings or childcare unavailability if the Secretary of Labor determines that the leave requirements would jeopardize the viability of the business.

In order to potentially qualify for this exception, at least one of the following is required to apply: a) providing the leave would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the employer to case operating at a minimal capacity; b) the absence of the employee or employees requesting such leave would entail a substantial risk to the financial health or operational capabilities of the employer because of their specialized skills, knowledge of the business or responsibilities; or c) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting the leave, and these labor or services are needed for the small business to operate at a minimal capacity.

However, even those employers who may qualify for the above exemption(s) would not be exempt from providing paid sick time to an employee who: a) is subject to a state, local, or federal quarantine; b) has been advised by a health care provider to self-quarantine; c) is experiencing symptoms of the public health emergency and seeking a medical diagnosis; d) is providing care for an individual subject to federal, state, or local quarantine or isolation; or e) is dealing with a “substantially similar condition.”

Penalties and Enforcement

Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid leave and files a complaint or institutes a proceeding under or related to the FFCRA.

Employers in violation of the FFCRA are subject to the following penalties and fines: up to $10,000 per violation and imprisonment of up to six months; back pay; liquidated damages; employment reinstatement; and attorney’s fees and costs. The FFCRA may be enforced by the Department of Labor or by a private cause of action brought by the employee.

The Department of Labor is expected to observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. “Good faith” exists when the violations are remedied and the employee is made whole as soon as practicable, the violations were not willful, and the DOL receives written commitment from the employer to comply with the FFCRA in the future.

Additional Resources

For further information, please visit the following links:

U.S. Congress – https://www.congress.gov/bill/116th-congress/house-bill/6201/text?overview=closed

U.S. Department of Labor – https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave and https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

Forbes – https://www.forbes.com/sites/tomspiggle/2020/04/01/enforcing-paid-leave-rights-under-the-families-first-coronavirus-response-act/#26fa157111a2

Kaiser Family Foundation – https://www.kff.org/global-health-policy/issue-brief/the-families-first-coronavirus-response-act-summary-of-key-provisions/

Article written by Richard W. Warner

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