On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law and went into effect, under the supervision of the Department of Labor Wage and Hour Division, beginning April 2, 2020, up through December 31, 2020.
The two primary provisions of the FFCRA are Emergency Paid Sick Leave (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Unfortunately, employers may elect not to pay employees who are classified as health care providers or emergency responders under both the EPSLA and EFMLEA, however, they do have obligations to other categories of employees, which are discussed in more detail below.
In order to receive either EPSL or EFMLEA, an employee must provide their employer (either orally or in writing) with the following documentation:
- Employee’s name
- Date(s) of requested leave
- Reason for the leave
- Statement that the employee is unable to work because of stated reason
Which Employers Are Subject to the FFCRA?
- Private Sector Employers with fewer than 500 employees, including non-profit organizations.
- Employees should be counted as of the day that the leave is requested
- This includes employees on leave, temporary employees, part-time employees, and full-time employees
- Whether the company is a “joint employer” or “integrated employer” should be taken into consideration
- DO NOT include independent contractors, employees outside of the U.S. or its territories, or employees who have been laid off or furloughed.
- Public Agencies regardless of the number of employees.
Who Qualifies for Emergency Paid Sick Leave (EPSL) and Under What Circumstances?
If you are an employee who is unable to work, either in-person or remotely, due to any of the following situations, then you are entitled to EPSL regardless of how long you’ve worked for your employer:
- An employee who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (documentation indicating the name of the government entity issuing the order is required);
- An employee whose been instructed by a doctor or healthcare provider to self-quarantine due to COVID-19 concerns (documentation indicating the name of the health care provider is required);
- An employee who is currently experiencing COVID-19 symptoms, and is seeking an official medical diagnosis;
- An employee who needs to care for an individual who is subject to a federal, state, or local quarantine/isolation order relating to COVID-19, or an individual whose healthcare provider has advised self-quarantine due to COVID-19 concerns;
- An employee who needs to care for a child whose school, child care provider, or place of care is unavailable because of COVID-19 concerns (documentation indicating the name of the child, name of the school/caregiver/place of care, and a statement that no other suitable person is available to care for the child is required);
- An employee who is experiencing any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services.
Payment Under the EPSL Provision of the FFCRA
For employees on leave due to the reason listed in either (1), (2), or (3) above, then you are entitled to be paid 100% of whichever is greater – your regular pay, the federal minimum wage, or the state/local minimum wage, with a cap of $511 per day.
For employees on leave due to the reason listed in either (4), (5), or (6) above, then you are entitled to be paid 2/3 of whichever is greater – your regular pay, the federal minimum wage, or the state/local minimum wage, with a cap of $200 per day.
Full-time employees are entitled to be paid up to 80 hours under EPSL, depending on your regular schedule.
Part-time employees are entitled to be paid for the average number of hours worked, pre-EPSL.
Emergency Family and Medical Leave Expansion Act (EFMLEA): Qualifying Events
Under the newly enacted FFCRA, employees that need to care for a son or daughter because their school, child care provider, and/or place of care is closed as a result of COVID-19 (and who have worked for the employer for 30 days) are entitled to extended family medical leave.
This extended family medical leave, referred to as EFMLEA, allows eligible employees to receive up to 12 weeks of paid leave. The first 10 days of this kind of leave are unpaid, however, the remaining 10 weeks are paid at 2/3 of the employee’s regular rate. Employees also have the option of using EPSL to cover the first 10 days of EFMLEA leave, which would otherwise be unpaid.
Small Business Exemptions to the EPSL and EFMLEA Requirements
Certain small businesses may be exempt from providing EPSL and EFMLEA to employees seeking leave to care for a child because their school, place of care, and/or caregiver is either unavailable or closed as a result of COVID-19. The small business exemption may be available if providing such leave would jeopardize the viability of the business.
In order for this exemption to apply to small businesses, an authorized officer of the business must make one of the following determinations and provide documentation as to such:
- The leave requested 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;
- The absence of the employee(s) requesting leave would involve a substantial risk to the financial health or operational capacity of the business because of the employee(s) specialized skills, business knowledge, or responsibilities; OR
- The small business does not have sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor/services provided by the employee(s) requesting leave, and these labor/services are necessary for the small business to operate at a minimal capacity.
Employers Can Receive Tax Credits for Providing EPSL and EFMLEA to Employees
Eligible employers are able to claim the credits on their federal employment tax returns, but they also can immediately receive the credits by reducing their federal employment tax deposits when doing their payroll. In doing so, it is important for employers to consult with their accountant and/or payroll company to identify the appropriate forms and codes required to receive immediate tax benefits for the credit, as well as the best way to maximize any benefits from the tax credit. For more information about employer tax credits, click here.
Prohibited Acts by Employers Under the FFCRA
Under the FFCRA, employers are prohibited from doing any of the following:
- Failure to return the employee to work who requested leave (with some limited exceptions)
- Denial of leave
- Failure to pay an employee properly for leave
- Retaliation against an employee who requests leave, or who returns to work after taking leave
- Failing to post the required notice of employee rights under the FFCRA (also applies to employers seeking small business exemption)
Consequences for Employers Who Fail to Abide by FFCRA
Under the law, employers who fail to provide paid sick leave under the FFCRA are considered in violation of Section 6 of the Fair Labor Standards Act (FLSA), which is the failure to pay minimum wage. Employers who violate the FFCRA are subject to the same penalties as employers who violate the FLSA, which can include:
- Payment to the employee of their unpaid wages
- An additional amount equal to the unpaid wages in the form of liquidated damages (subject to enforcement proceedings by the Department of Labor as proscribed by U.S.C. § § 206, 216, 217)
- Additional penalties for unlawful termination and/or retaliation (pursuant to 29 U.S.C. §§ 216, 217); and
- Attorney’s fees
For FAQs, definitions, and more information on the FFCRA, click here.
