Paid Employee Leave and the Families First Coronavirus Response Act

FFCRA Leave Requirements Expired Dec. 31, 2020

What is the Families First Coronavirus Response Act?

The Families First Coronavirus Response Act (FFCRA), signed into law by President Donald Trump on March 18, 2020, has sent the business community scrambling to figure out what this means for them as they grapple with the workplace implications of COVID-19.

For small and medium-sized employers in Hawaii, the biggest, immediate impact of the Act—which took effect on April 1, 2020—is the mandatory paid sick leave and expanded FMLA provisions.

“FFCRA was intended to provide relief to workers affected by this global pandemic that has been devastating for businesses, their employees, and employees’ families,” says Michele Kauinui, Director of HR Services at simplicityHR by ALTRES. “Businesses with fewer than 500 employees are provided refundable tax credits that reimburse them for the cost of providing paid sick and family leave related to COVID-19.

“Since the enactment of FFCRA, the Department of Labor, along with the IRS, has issued ongoing guidance to help employers interpret and implement the law.”

The huge bill also includes provisions for providing free coronavirus testing, enhanced unemployment insurance, and additional funding for food safety programs. Paid leave benefits are covered under two provisions of FFCRA: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

What are the paid leave provisions?

There are two paid leave acts under FFCRA that provide financial relief for employees affected by the coronavirus pandemic.

Emergency Paid Sick Leave Act

The paid sick leave provision requires covered employers to provide up to 80 hours of paid sick leave to full-time employees (or the equivalent two-week average for part-time employees) for the following reasons:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19, or caring for an individual who is.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19, or caring for an individual who has been advised as such.
• The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
• The employee is caring for their child if the school or place of care has been closed, or the child care provider is unavailable, due to COVID–19 related reasons.
• The employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Paid sick leave benefits needed to be made immediately available when FFCRA took effect, on April 1, 2020.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses this paid sick leave benefit.

• COVID-19 Employer Resources: Families First Coronavirus Response Act

Emergency Family and Medical Leave Expansion Act

This provision expands the Family and Medical Leave Act (FMLA) to allow eligible employees who are unable to work (or telework) to take up to 12 weeks of leave if their child’s school or place of care is closed, or the childcare provider is unavailable, due to a public health emergency, like the coronavirus pandemic we are currently experiencing.

The Act further requires employers to pay employees who qualify for leave under this FMLA expansion. Any leave taken under this expansion counts towards the employee’s usual allotment of FMLA.

Which employers are covered?

Private employers with fewer than 500 employees (and certain public employers) are subject to the emergency paid sick leave and expanded FMLA provisions of FFCRA. Employers who are healthcare providers and emergency responders as defined in the Act may be excluded from providing paid sick leave and expanded FMLA in certain circumstances.

Is it possible to get an exemption from FFCRA requirements?

Private employers with fewer than 50 employees may be exempt from certain FFCRA provisions “if such leave would jeopardize the viability of the business as a going concern.”

According to the Department of Labor, a small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. 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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

As of May 15, 2020, no additional official guidance has been provided.

What is the amount of pay?

When leave is needed under the emergency sick leave provisions, pay is at the employee’s regular rate. However, FFCRA pay is capped at $511 per day ($5,100 total) for leave needed for the employee’s own care and $200 per day ($2,000 total) for leave to care for someone else.

When leave is needed under the expanded FMLA provision, emergency paid sick leave under FFCRA may be applied toward the first 10 workdays of unpaid leave. An employee can also elect, or be required by the employer, to use any existing paid leave (e.g., vacationor PTO, but not sick leave if the employee is not ill) concurrently. Qualified employees must otherwise be paid at two-thirds the employee’s regular rate of pay with a cap of $200 per day ($10,000 total).

Which employees are eligible for paid leave?

Emergency paid sick leave benefits must be made available to all eligible employees, provided that their reason for leave meets one of the conditions listed above. Any unused emergency paid sick leave does not carry over to the following year, nor does it need to be paid out upon separation.

For the expanded FMLA provisions, eligible employees must only be employed for at least 30 calendar days. The other usual FMLA requirements do not apply.

Do the leave provisions offer job protection?

Yes; FFCRA requires employers to provide the same (or nearly equivalent) job to an employee returning from leave. In addition, employers are prohibited from take adverse action against any employee who took emergency paid sick or family leave, or who have filed a complaint relating to these Acts.

However, employers may still take employment actions related to legitimate business reasons. This may include layoffs due to closure of a worksite, but the employer has the burden to demonstrate that an employee would have been laid off even if leave had not been taken.

Highly compensated “key” employees, as defined under FMLA, may be refused to return in the same position, along with employees who took leave to care for their child under the expanded FMLA provision if their employer has fewer than 25 employees and meets certain hardship conditions.

Who is responsible for paying for the leave?

Covered employers are required to offer FFCRA paid leave benefits and are eligible for dollar-for-dollar reimbursement through payroll tax credits. The Act sunsets on December 31, 2020. (See Division G—Tax Credits for Paid Sick and Paid Family and Medical Leave).

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney or human resources adviser before acting upon any information in this article.