News & Resources

Tue, Apr 14, 2020| | Blog

Navigating the Families First Coronavirus Response Act

Navigating the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), which contains the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, became effective April 1, 2020. The FFCRA requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. 

Under the Emergency Paid Sick Leave Act, a covered employer must provide employees:

  • Two weeks of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee 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 of paid sick leave at two-thirds the employee’s regular rate of pay where 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 care for a child 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. 

Additionally, under the Emergency Family and Medical Leave Expansion Act, a covered employer must provide employees that it has employed for at least 30 days:

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

Who is a covered employer under the FFCRA?

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Notably, small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

  • How to determine if your business is under the 500-employee threshold: Employers should count both full-time and part-time employees, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency. Independent contractors under the Fair Labor Standards Act (“FLSA”) are not considered employees for purposes of the 500-employee threshold.

Does my business qualify under the small business exemption?

  A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements if:

  • They employ fewer than 50 employees;
  • The leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • An authorized officer of the business has determined that:
  1.  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; 
  2. The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s 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 requesting leave, and such labor or services are needed for the small business to operate at a minimal capacity.

To elect the small business exemption, the employer must document that a determination has been made pursuant to the criteria above. The employer should retain such documentation in its records, but there is no requirement that the employer send such documentation to the Department of Labor. Employers who wish to utilize the small business exemption must determine its availability on a case-by-case basis.

How much leave are part-time employees entitled to under the FFCRA?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If the employer cannot make this calculation because the employee has not been employed for at least six months, the employer can use the number of hours that it was agreed the employee would work at the time of hiring. If there is no such agreement, the employer may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

How is an employee’s regular rate calculated for purposes of the FFCRA?

The regular rate of pay used to calculate paid leave is the average of the employee’s regular rate under the FLSA over a period of up to six months prior to the date on which the employee takes leave. An employee’s regular rate under the FLSA is calculated by dividing the total pay for employment (except for statutory exclusions) in any workweek by the total number of hours actually worked.

Should overtime hours be included when calculating pay due to employees under the FFCRA?

Yes. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act require employers to pay employees for the hours the employees would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act caps paid sick leave at 80 hours. Thus, an employee who is schedule to work 50 hours a week would be able to take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week.

What about telework?

Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.  If an employer permits teleworking, and an employee becomes unable to perform his or her teleworking tasks or work the required teleworking hours due to a qualifying condition for paid sick leave, then the employee is entitled to take paid sick leave.

Similarly, if an employee becomes unable to perform his or her teleworking tasks or work the required teleworking hours because the employee needs to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, then the employee is entitled to take expanded family and medical leave. Of course, to the extent an employee is able to telework while caring for his or her child, paid sick leave and expanded family and medical leave are not available.

Are tax credits available for wages paid under the FFCRA?

Yes. Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.

Is my business required to provide employees notice of the FFCRA requirements?

Yes. Covered employers must post notice of the attached FFCRA requirements in a conspicuous place on their premises.  Click here  for the poster.  If most of your employees are teleworking, you may satisfy this requirement by emailing or direct mailing the attached poster to employees, or posting it on an employee information internal or external website.

Rossway Swan is here to help your business navigate the employment challenges presented by COVID-19. Should you have any questions about the FFCRA or other employment laws implicated by COVID-19, please do not hesitate to contact Attorney Thomas W. Tierney or Krista M. Runte in our Employment and Labor Law Department at (772) 231-4440.