Families First Coronavirus Response Act
April 06, 2020 (updated April 08, 2020)
In response to the global pandemic, the Federal government recently enacted the Families First Coronavirus Response Act (“FFCRA”), which requires most employers to provide employees with paid sick leave or extended family and medical leave if they have to be off work for specified reasons related to the novel coronavirus. Please note that this area of law is ever-changing and it is likely that over the course of the next several months, we will see clarifications or changes as to how the FFCRA is implemented. The following information is accurate only as to the date of April 3, 2020 and we will endeavor to publish updates as necessary.
When does the FFCRA take effect?
- April 1, 2020 and it is set to expire December 31, 2020. The FFCRA is not retroactive and only applies to employees seeking leave during its effective time period.
Does FFCRA apply to all employers?
- No, it applies to employers with less than 500 employees and certain public employers. It does not cover federal government employees covered by Title II of the Family and Medical Leave Act (“FMLA”). However, these federal employees may still qualify for paid sick leave rights under Title II of the FMLA.
- This includes most small businesses. However, the U.S. Secretary of Labor has the authority to exempt small businesses with fewer than 50 employers if providing the protective leave “jeopardizes the viability of the business as a going concern.”
- Small business are only exempt if they meet the following requirements:
- employ less than 50 employees;
- the employee is requesting leave because their child’s school or daycare is closed or their normal childcare provider is unavailable due to COVID-19; and
- one of the following conditions is present as determined by an authorized officer of the business:
- the provision of paid leave would result in the business’s expenses and financial obligations exceeding available business revenue and cause the business to cease operating at a minimal capacity;
- because of the employee’s specialized skills, knowledge or responsibilities, their absence would create a substantial risk to the financial health or operation capabilities of the business; or
- there are not sufficient qualified workers to perform the labor or services provided by the employee requesting leave, and the labor or services are needed for the small business to operate at minimal capacity.
- The Secretary of Labor can also exclude certain health care providers from the definition of eligible employees.
Qualifying Reasons for Leave, Pay and Duration: An employee qualifies for paid leave under the FFCRA if the employee is unable to work, including the inability to work remotely, for any of the following reasons related to COVID-19:
- Being subject to a Federal, State, or local quarantine or isolation order related to COVID-19. NOTE: The State of Texas has issued a Stay at Home Order that would qualify here, if the employee is unable to work, including remotely.
- Employees are eligible for 2-weeks paid leave (80 hours for full-time employees and the average number of hours worked by a part-time employee over a 2-week period) at their regular rate of pay or minimum wage, whichever is higher, up to a maximum of $511 per day and $5,110 over a 2-week period.
- Duration and pay are the same as #1 above.
- Duration and pay are the same as #1 above.
- Employees are eligible for 2-weeks paid leave (80 hours for full-time employees and the average number of hours worked by a part-time employee over a 2-week period) at two-thirds of their regular rate of pay or two-thirds of minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 over a 2 week period.
- Two weeks of paid sick leave following #1 duration and pay above, and for employees who have been employed by the employer for at least thirty (30) days, an additional 10 weeks of two-thirds paid leave up to $200 per day and $12,000 total.
Are there any ways for employers to recoup any of the payment made?
- Yes, covered employers qualify for a dollar-for-dollar tax credit reimbursement for all qualifying wages paid under the FFCRA.
Are there any additional requirements for Employers?
- Starting on April 1, Employer must post a FFCRA notice, which can be found here in a conspicuous place on its premises.
Can I terminate an employee’s employment instead of paying FFCRA leave?
- NO. Employers may not terminate, discharge, or in any way discipline or discriminate against any employee who takes paid sick leave under the FFCRA and files a related complaint. If you have work for your employee and you do not close, you are required to pay your employee for paid sick leave under the FFCRA.
- Although we do not yet know how this Act will be interpreted, similar federal acts which were initiated to protect employees, have been read to favor the employee and have few defenses or exceptions.
- The FFCRA does not apply to furloughed employees. If and employee has already been furloughed, is furloughed in the future, has a reduction of hours, or is terminated because the employer does not have enough work for the employee, FFCRA leave does not have to be paid. The employee should seek unemployment. Please note that a decision to furlough, terminate or reduce hours cannot be used to discriminate against an employee for seeking leave.
What if I cannot afford to pay for FFCRA leave?
- If you are a small business and cannot afford to pay for FFCRA leave, then you can request an exemption from the U.S. Secretary of Labor. Alternatively, there are grants and loans that small businesses can apply for if they arebeing adversely affected by the pandemic or related government orders. For additional information, see Employee Safety and COVID-19.
For assistance in developing workplace plans, policies and procedures for preparedness and response to COVID-19, or to discuss your rights or obligations with regard to the same, please contact:
This information is made available by The Mussalli Law Firm for informational purposes only, does not constitute the rendering of legal advice, and is not a substitute for obtaining legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described above. Your use of these materials does not create an attorney-client relationship between you and The Mussalli Law Firm. The facts and results of each case will vary, and no particular result can ever be guaranteed.