Families First Coronavirus Response Act: COVID-19-Related Paid Employee Leave Rights

Enacted on March 18, 2020, the Families First Coronavirus Response Act (FFCRA) requires small and medium-sized employers to provide employees with paid emergency sick leave and/or paid expanded family and medical leave for specified reasons relating to the COVID-19 pandemic. The FFCRA also provides that covered employers will be reimbursed for complying with these requirements. The provisions will remain in effect through December 31, 2020.

This post will focus on the basic provisions of the FFCRA as they relate to employee rights to COVID-19-related emergency paid sick leave (under the Emergency Paid Sick Leave Act, which is part of FFCRA) and expanded family and medical leave (under the Emergency Family and Medical Leave Expansion Act, an amendment to the FMLA, and also part of the FFCRA). The Department of Labor is also an excellent resource for information about the FFCRA as it relates to both employee paid leave rights and employer paid leave requirements. Here are FFCRA information posters (non-federal employees and federal employees) prepared by DOL for employers to disseminate to employees.

Covered Employers

The FFCRA’s emergency paid sick leave and expanded family and medical leave provisions apply to private employers with fewer than 500 employees. The DOL has indicated that certain provisions may not apply to certain employers with fewer than 50 employees. For example, small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

The provisions also apply to certain public employers. Most federal government employees are covered by Title II of the Family and Medical Leave Act. Because the FFCRA did not amend Title II of the FMLA, most federal employees are not covered by the FFCRA’s expanded family and medical leave provisions. However, federal employees covered by Title II of the FMLA are covered by the FFCRA’s emergency paid sick leave provisions.

Eligible Employees

As explained below, all employees of covered employers are eligible for two weeks of emergency paid sick time for specified reasons related to COVID-19. 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. The FFCRA also provides some special rules for health care providers and emergency responders. In particular, the law allows employers of health care providers or emergency responders to elect to exclude those employees from eligibility for the leave provided under the FFCRA.

Summary of Emergency Paid Sick Leave Rights

With respect to emergency paid sick leave, the FFCRA generally provides that employees of covered employers are eligible to receive:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s full regular rate of pay where the employee is unable to work because she or he is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick 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 (pursuant to Federal, State, or local government order or advice of a health care provider), or to 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, and/or 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.

In other words, if an employee becomes quarantined or sick, the employee can receive paid sick leave at her or his full regular rate. If the employee’s child’s school closes because of the pandemic and the employee must take leave to care for the child, the employee can receive paid sick leave at two thirds his or her regular pay rate.

Qualifying Reasons for Emergency Paid Sick Leave

Under the FFCRA, an employee qualifies for emergency paid sick leave if the employee is unable to work or telework due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. 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; or
6. 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.

Duration of Emergency Paid Sick Leave

Under the FFCRA’s emergency paid sick leave provisions, a full-time employee is eligible for two weeks (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.

Calculation of Pay During Emergency Paid Sick Leave

The calculation of pay during emergency paid sick leave depends on the reason for the leave. If the employee requires leave because she or he

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19,
2. has been advised by a health care provider to self-quarantine related to COVID-19, or
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis,

the employee is entitled to pay at either her or his full regular rate or the applicable minimum wage, whichever is higher. This emergency paid leave is capped at a maximum of $511 per day and $5,110 in the aggregate (over a 2-week period).

The rate of emergency paid sick leave is lower if the employee requires leave to care for someone else. If the employee requires leave because she or he

1. is caring for an individual subject to a Federal, State, or local quarantine order or who has been advised by a health care provider to self-quarantine related to COVID-19,
2. 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, or
3. 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,

the employee is entitled to pay at two thirds her or his regular rate or two thirds the applicable minimum wage, whichever is higher. This emergency paid leave is capped at a maximum of $200 per day and $2,000 in the aggregate (over a 2-week period).

Paid sick leave under the FFCRA 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.

Summary of Paid Expanded Family and Medical Leave Rights

In addition, the FFCRA generally provides that employees who have been employed by covered employers for at least 30 days are eligible to receive:

• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where 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 for reasons related to COVID-19.

In short, if the employee’s child’s school or daycare closes because of the pandemic and the employee must take leave to care for the child, the employee is eligible for up to 10 weeks of paid “expanded” FMLA leave at two thirds her or his regular pay rate.

Qualifying Reasons for Paid Expanded Family and Medical Leave

Under the FFCRA, an employee qualifies for expanded family and medical leave only if the employee requires leave to care 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 Paid Expanded Family and Medical Leave

In this situation — where an employee requires leave to care for a child whose school or place of care is closed due to COVID-19 — the duration of leave again depends on whether the employee is full-time or part-time. The difference turns on hours typically worked per week.

A full-time employee is eligible for up to a total of 12 weeks of leave (two weeks of emergency paid sick leave, followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week. A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that same period.

Calculation of Pay During Paid Expanded Family and Medical Leave

In the expanded family and medical leave scenario — where an employee requires leave to care for a child whose school or place of care is closed due to COVID-19 — employees taking leave are entitled to pay at two thirds their regular rate or two thirds the applicable minimum wage, whichever is higher.

However, this paid leave is capped at a maximum of $200 per day and $12,000 in the aggregate (over a 12-week period). An employee has the option to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this part of the law.

Notice of Need for Leave

As with the FMLA, where an employee’s need for leave under the FFCRA is foreseeable, the employee should provide notice to the employer as soon as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

This blog was also published to TimCoffieldAttorney.net.