Understanding Families First Coronavirus Response Act (“FFCRA”)

In order to help you understand how FFCRA impacts you, we have provided you with a summary of the legal implications of FFCRA as well as compiled resources for you to help you plan ahead in these uncertain times. These resources have been shared by our Board Members and members of the Wright Community, and we will continue to update with additional material as things continue to evolve. However, we are in no way providing legal, Human Resources, or financial advice. Before taking action in regards to any of the information provided, please consult appropriate outside resources for advice.

FFCRA – US Department of Labor on Paid Leave

A few initial points:

• For clarity at the outset, there are two different Acts and two different key concepts – – all  included in the FFCRA:
  • The Emergency Paid Sick Leave Act
    • “Paid sick leave” means paid leave under the Emergency Paid Sick Leave Act.
  • The Emergency Family and Medical Leave Expansion Act.
    • “Expanded family and medical leave” means paid leave under the Emergency Family and Medical Leave Expansion Act.

These are described below.

• An important point relating to the paid leave that an employee laid off before April 1 is entitled:
  • The Guidance states that “All employees of covered employers” are eligible for two weeks of expanded family and medical leave for specified reasons related to COVID-19.
  • However, only “employees employed for at least 30 days” are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.
  • This means, in the words of the Guidance, that the employee would have needed to be on the employer’s on its payroll, in the words of the Guidance,  “for the 30 calendar days immediately prior to the day your leave would begin.”
  • See Item 6 below. See Q&A, Question 14.
  • Therefore, any employee laid off on or before March 30 would appear not to qualify for the additional ten weeks of paid family leave.
• Paid leave granted by an employer prior to April 1 does not appear to reduce the employer’s obligations under the FFCRA beginning as of April 1. See Item 11 below.
• The threshold requirement that an employee be “unable to work” appears to mean that the employee cannot work either at the office or from home via teleworking.
• A key issue that is not clear: does a State government stay-at-home order qualify as a “Federal, State, or local quarantine or isolation order related to COVID-19” under the law.

The Different Acts:

• The Families First Coronavirus Response Act includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
• There are two key terms:
  • “Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act.
  • “Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act.
• Existing statutes remain in place including:
  • The Family and Medical Leave Act of 1993 (FMLA), and
  • The Fair Labor Standards Act.

 Dates:

• The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Tax Credits:

• Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.
• Wage and Hour Division does not administer this aspect of the law, but notes that every dollar of expanded family and medical leave (plus the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer.
• For more information, please see the Department of the Treasury’s website.

Covered Employers:

• The expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.
• See Q&A, Question 2 for additional details.

Small Business Exemption:

• Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
• Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020).
• See Q&A, Question 4 for additional details.

Eligible Employees:

• All employees of covered employers are eligible for two weeks of expanded family and medical leave for specified reasons related to COVID-19.
•  Employees employed for at least 30 days by the employer are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.
• More on “employed for at least 30 days”:

“You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020. If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period. “

From Q&A, Question 14.

1. Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.
2. There may be different rules for federal employees as well.

Qualifying Reasons for Leave:

• Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. 1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
   2. has been advised by a health care provider to self-quarantine related to COVID-19;
   3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
   4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
   5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
   6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

• Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

• For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
• For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

• For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
• For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
• For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
• For further information, see Q&A, Question 7, Question 8
• For further information on overall cap on number of paid sick leave hours, see Q&A, Question 9.

Counting Hours:

• For counting hours of part-time employees, see Q&A, Question 5.
• For treatment of overtime hours, see Q&A, Question 6. (Although overtime hours are counted, apparently they are paid at the normal hourly rate).

Paid Leave Prior to the April 1 Effective Date of the FFCRA and other Timing Issues:

• An employer cannot deny (or subtract) paid leave granted prior to April 1 from the paid leave requirement of the Emergency Paid Sick Leave Act.
• See Q&A, Question 11.

The Interplay Between the Emergency Paid Sick Leave Act and the Family Medical Leave Expansion Act:

• An employee may be eligible for both paid sick leave and emergency family and medical leave.
• See Q&A, Question 10 for further information.
• Paid sick leave and expanded family and medical leave requirements are not retroactive. They become effective on April 1.

Prohibition Against Retaliation:

• Employers may not discharge, discipline, or otherwise discriminate against any employee who takes expanded family and medical leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Penalties and Enforcement:

• See Fact Sheet for Employers.
• The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.

Workplace Poster Requirement:

• Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.
• The Department will issue a model notice no later than March 25, 2020.
• A workplace poster required for most employers will be published later this week, along with additional fact sheets and more Q&A.

For Additional Information:

• The guidance itself is comprised of four documents, all of which are set forth here:
  • News Release
  • Fact Sheet for Employees
  • Fact Sheet for Employers
  • Questions and Answers
• Visit the following sites for more information:
  •  https://www.dol.gov/newsroom/releases/whd/whd20200324
  • https://www.dol.gov/agencies/whd/pandemic