Families First Coronavirus Response Act (FFCRA) Overview

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law. 

What does the Families First Coronavirus Response Act (FFCRA) do? 

The FFCRA responds to the coronavirus outbreak by: 

• Creating new paid sick leave requirements. 
• Amending the Family and Medical Leave Act (FMLA) to provide new temporary qualifications for FMLA leave to care for children and requiring some pay during this FMLA leave.  
• Providing free coronavirus testing.
• Expanding food assistance.
• Expanding unemployment benefits.
• Requiring certain employers to provide additional protections for health care workers.

When will the FMLA and paid sick changes go to into effect?
Fifteen days from enactment, or on Wednesday, April 1, 2020 and the FFCRA allows these changes to continue until December 31, 2020. 

With respect to the FMLA changes, to whom does FFCRA apply? 
These changes only apply to COVID-related FMLA leave to care for children. Meaning, if you have an employee who is requesting FMLA for non-COVID related issues, the new thresholds for employers and employees do not apply. 

Employers: The FFCRA FMLA changes and paid sick benefits apply to employers with fewer than 500 employees. 

Under the new FMLA provisions, there appear to be further exemptions for healthcare employers and small businesses.  

• The DOL is allowed to draft new regulations to exclude certain healthcare providers and emergency responders from the definition of “eligible employee.” However, these regulations have not been drafted.
• The DOL is allowed to draft new regulations to exempt small businesses (fewer than 50 employees) when it would jeopardize the viability of the business as a going concern. 

As soon as guidance is released on these exemptions, we will update you. 

Employees: The FMLA provisions apply to employees who have been employed for 30 calendar days. The usual FMLA requirements that the employee has been employed for a year, worked for 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius do not apply.

Tell me about the new COVID-related FMLA Leave. 
Covered Employers (those with fewer than 500 employees) will have to allow 12 weeks of FMLA leave for use by employees who have been employed for 30 days if the employee has a “qualifying need related to a public health emergency.” 

“Qualifying need related to a public health emergency” means an employee is unable to work (or telework) due to a need for leave to: 

• Care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. 

Calculation of Pay for COVID-19 related FMLA: The first 10 days may be unpaid, although employees may elect to use other paid benefits to cover this period. The remaining time must be paid at 2/3 the employee’s regular rate up to a maximum of $200 per day and $10,000 in the aggregate. 

Tell me about the Federal Paid Sick leave.
Covered employers (those private employers with fewer than 500 employees and public agencies with 1 or more employees) are required to provide employees with up to 80 hours of paid sick leave (or the equivalent of two weeks of hours for part-time employees) to the extent that the employee is unable to work (or telework) due to a need for leave because: 

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
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 who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. 

Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

Calculations of Sick Pay

• Sick Pay is calculated based on an employee’s regular rate of pay.
• Leave under Sections (1), (2), and (3) above: Paid at regular rate. Max sick time pay is $511 per day and $5,110 in the aggregate. 
• Leave under Sections (4), (5) and (6) above: Paid at 2/3 regular rate. Max sick time pay is $200 per day and $2,000 in the aggregate. 
• Additional regulations regarding calculation of sick time pay will be released by the DOL within 15 days and we will update you. 

Posting Requirements 
A model notice will be released by the DOL within 7 days. We will update you as soon as this Notice is released. 

Does the Company pay for these new benefits? 
Yes. Employers must pay these benefits. There are provisions in the FFCRA that provide tax credits to employers in certain circumstances and with certain caps. 

Special Provisions for Multiemployer Collective Bargaining Agreements:
FMLA Provisions: An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under section 110(b)(2) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act, by making contributions to a multiemployer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act.

Paid Sick Provisions: An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under this Act by making contributions to a multiemployer fund, plan, or program based on the hours of paid sick time each of its employees is entitled to under this Act while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement and for the uses specified under section 5102(a).

Overview: The United States Centers for Disease Control (CDC) and the Department of Health and Human Services are coordinating the public health response to COVID-19. Much is unknown about how the virus that causes COVID-19 spreads. Current knowledge is largely based on what is known about similar coronaviruses. There is much to learn about the severity of COVID-19 as the outbreak investigation continues.  

Additional Resources:

• COVID-19 and Unemployment Insurance Benefits for Workers 
• COVID-19 and Unemployment Insurance Benefits for Employers 
• COVID-19 Scenarios & Benefits Available 

Contact Us:
For more information on the Families First Coronavirus Response Act (FFCRA) and other communications relating to the Coronavirus, please contact one of our labor and employment law attorneys.

Authors: 

Disclaimer: This information is intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.