President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020, the same day that it passed the Senate. Among other emergency measures intended to address the coronavirus pandemic, the FFCRA requires covered employers to provide employees with two distinct types of leave for coronavirus-related reasons—up to 2 weeks of paid sick leave, and job-protected leave under the Federal Family and Medical Leave Act (FMLA), the first 10 days of which may be unpaid and the remainder of which must be paid. Pay may be full pay or partial pay depending on the specific reason for the leave and is subject to caps.
The FFCRA is a modified version of a bill passed March 14 by the House, which we posted about here. The biggest change from the House bill for employers is that the FFCRA requires coronavirus-related FMLA leave only for childcare reasons such as school closures, and not for health reasons related to the pandemic. Like the original bill, the FFCRA provides paid sick leave for both childcare and health reasons. Another change is that the FFCRA clarifies that the leave benefits are unavailable to employees who are able to work, including telework, during the leave period.
Following are highlights of the key features of the FFCRA’s leave requirements. Note that these requirements go into effect April 2, 2020, which means that employers need to move quickly to prepare to implement them. If you have questions about the FFCRA or need assistance updating your leave policies, please contact one of the authors of this blog post or the Hogan Lovells attorney with whom you regularly work.
Covered employers: Private employers with 500 or more employees are exempt from the FFCRA’s leave requirements. Additionally, the Secretary of Labor is authorized to exempt businesses with fewer than 50 employees, but only when the leave requirements “would jeopardize the viability of the business as a going concern.”
Covered employees: Generally, all employees of covered employers are eligible for the FFCRA’s paid sick leave benefits, and employees are eligible for the coronavirus-related FMLA leave if the employee has worked for the employer for at least 30 calendar days. There are special provisions for health care providers and emergency responders, under which the Secretary of Labor may exempt such employees “for good cause,” and employers also may choose to opt out of providing these employees with the leave benefits.
- Paid sick leave is available for the following reasons, provided that the employee is unable to work or telework during the leave period:
1. the employee is subject to a governmental quarantine or isolation order related to COVID-19 (the disease caused by the coronavirus);
2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. the employee is caring for an individual in quarantine or isolation as described above (note this is a change from the House bill, which required the individual to be a family member);
5. the employee is caring for a son or daughter because the son’s or daughter’s school or daycare is closed, or the employee’s child care provider is unavailable, due to COVID-19 precautions; or
6. “[t]he employee is experiencing a substantially similar condition recognized by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
- Coronavirus-related FMLA leave: is available if the employee is unable to work or telework due to the need for leave to care for a son or daughter because of closure of school or daycare, or the unavailability of a regular compensated child care provider, because of a government-declared emergency with respect to COVID-19.
Duration, amount, and use of paid sick leave benefits:
- Employers must provide 80 hours of paid sick leave for qualifying reasons for full-time employees.
- Part-time employees are entitled to paid sick time equal to the number of hours they work, on average, over a 2-week period.
- There are special rules for calculating paid leave for employees who work varying schedules.
- Paid sick leave related to the employee’s own coronavirus-related needs (reasons (1)-(3) above) is paid at 100 percent of the employee’s usual rate of pay, subject to a cap of US$511 per day and US$5,110 in the aggregate.
- Paid sick leave related to the employee’s caring for another individual; due to school closures or the unavailability of a child care provider; or taken for a recognized “substantially similar condition” (reasons (4)-(6) above) is paid at two-thirds of the employee’s usual rate, subject to a cap of US$200 per day and US$2,000 in the aggregate.
- Employers may not require employees to find replacements when they are using paid sick leave.
- Employers may not require employees to exhaust other employer-provided paid leave before using the coronavirus-related paid sick leave, which employees may use first.
Duration, amount, and use of coronavirus-related FMLA leave:
- The first 10 days of FMLA leave for the qualifying coronavirus-related reasons stated above may be unpaid, or an employee may choose to substitute another type of paid leave (e.g., vacation, personal leave, etc.).
- After the first 10 days, employees must receive at least two-thirds pay for the duration of the FMLA leave, subject to a cap of US$200 per day and US$10,000 in the aggregate.
- The maximum FMLA leave for qualifying coronavirus-related reasons, unpaid and paid, is 12 weeks.
- The FMLA leave is job-protected with certain exceptions for employers with fewer than 25 employees.
Tax credits: The FFCRA provides employers with tax credits to defray the cost of the benefits.
Notice to employees: The FFCRA requires that employers post a notice, to be issued by the Secretary of Labor on or before March 25, 2020, informing employees of their paid sick leave rights. A similar notice is not required for FMLA leave entitlement. However, in light of employers’ general duty to give employees notice of their FMLA rights, employers should notify employees of their new FMLA rights, as well.
Regulations/expiration: The FFCRA authorizes the Secretary of Labor to issue regulations “as needed” to “to ensure consistency” between the sick leave, FMLA leave, and tax credit provisions. Thus, employers may be able to expect additional guidance before the leave provisions expire December 31, 2020.
Other provisions: The FFCRA contains various details concerning paid leave not addressed above, such as provisions regarding multi-employer collective bargaining agreements, and many other provisions not related to leave, such as enhanced unemployment compensation.