UPDATE:The federal Families
First Coronavirus Response Act (FFCRA) expired on December 31, 2020.
Therefore, as of January 1, 2021, employers are no longer required
to provide protected, paid leave under the FFCRA. However, on March
11, 2021, President Joe Biden signed the American Rescue Plan of 2021
(the “Plan”) (see Public Law No. 117-2). The Plan does not mandate
that employers provide COVID-19-related leave but does continue to
provide a tax credit to employers covered by the FFCRA (the tax credit
reimburses employers for the cost of providing FFCRA leave). Specifically,
for those covered employers that choose to continue to provide leave,
the Plan extends the date employers can receive tax credits until
September 30, 2021.
In addition, the Plan
establishes that on April 1, 2021, the employee limit of 80 hours
for paid sick leave will reset. The 10-week-per-employee paid family
leave limit will also reset on April 1, 2021. Employers that voluntarily
allow employees to take such additional paid sick leave or paid family
leave can still receive a tax credit for any additional leave taken
as of April 1, 2021.
Finally, under the Plan,
an employee can now qualify to receive paid sick leave and/or paid
family leave if they take time off to get the vaccine and if they
experience complications as a result of receiving the vaccine.
The Families First Coronavirus Response
Act (the Act or FFCRA) became law when President Donald Trump signed
it on March 18, 2020, and it became effective on April 1, 2020. The
Act builds on an $8.3 billion emergency COVID-19 spending package
enacted into law on March 6, 2020, to address the immediate public
health crisis of the COVID-19 pandemic. Broadly, these provisions
include, but are not limited to, the following: emergency paid sick
leave; emergency/expanded family and medical leave; unemployment benefits;
and free coronavirus testing.
The Act modifies U.S. Department of Agriculture
(USDA) food assistance and nutrition programs to allow certain waivers
to requirements for school meal programs, suspend the work requirements
for the Supplemental Nutrition Assistance Program (SNAP, formerly
known as the food stamp program), and allow states to request waivers
to provide certain emergency SNAP benefits. In addition, the Act requires
the Occupational Safety and Health Administration (OSHA) to issue
an emergency temporary standard that requires certain employers to
develop and implement a comprehensive infectious disease exposure
control plan to protect healthcare workers.
The Act also includes provisions that establish
a federal emergency paid leave benefits program to provide payments
to employees taking unpaid leave due to the COVID-19 outbreak, expand
unemployment benefits and provide grants to states for processing
and paying claims, require employers to provide paid sick leave to
employees, establish requirements for providing coronavirus diagnostic
testing at no cost to consumers, treat personal respiratory protective
devices as covered countermeasures that are eligible for certain liability
protections, and temporarily increase the Medicaid federal medical
assistance percentage (FMAP).
Sick leave. The Act requires employers with fewer than 500 employees to provide
up to 80 hours of paid sick leave for local-/state-/federal-imposed
quarantine or self-quarantine for COVID-19, for their own illness
or a family member’s illness related to COVID-19, and for school/daycare
closures related to COVID-19. Employees are not entitled to paid sick
leave, however, if they are simply home because their workplace is
closed. In these situations, employees may be eligible for unemployment
compensation.
Paid leave required under the Act is separate
and above any existing sick leave entitlements. Outside of those circumstances,
an employee is subject to existing sick leave entitlements.
For absences related to the employee’s own
exposure to the coronavirus, employers must pay 100 percent of the
employee’s regular wages. Pay may be capped at $511 per day and $5,110
in the aggregate. For absences related to the employee’s family member
or school and/or childcare closings, employers must pay the paid sick
time at 2/3 the employee’s regular wages. Pay may be capped at $200
per day and $2,000 in the aggregate. Note that part-time employees
are entitled to the number of paid sick time hours equal to the average
number of hours they work over a 2-week period.
Emergency family and
medical leave. The Act gives government employees and employees
of companies with fewer than 500 employees the right to take up to
3 months of leave from their jobs if they have to care for a family
member who is quarantined or for a child whose school has been closed.
Under the Emergency Family and Medical Leave
Act (Expanded FMLA or EFMLA), for absences related to COVID-19, employees
must only be employed for 30 consecutive days, and there are no hours-worked
requirements.
Specifically, the EFMLA provisions temporarily
expand the current FMLA to allow up to 12 weeks of job-protected leave
for employees who are unable to work because they must care for a
child whose school/daycare provider has closed due to a public health
emergency declared as a result of COVID-19 by a federal, state, or
local authority. Paid FMLA leave for this reason is required after
the first 10 days (during which the paid sick leave may be used).
Employees may choose to use previously available sick leave, vacation
leave, or paid time off. Employers cannot require employees to utilize
such leave, however. 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). The Act also exempts certain healthcare providers
from the expanded coverage. The right to EFMLA leave related to COVID-19
expires December 31, 2020.
On March 24, 2020, the Wage and Hour Division
of the U.S. Department of Labor (DOL) issued additional guidance for
employers and employees relating to the two paid leave provisions
of the FFCRA: the Emergency Paid Sick Leave Act and the Emergency
Family and Medical Leave Expansion Act.
The provisions will become effective on
April 1, 2020, and will apply to leave taken between April 1, 2020,
and December 31, 2020. The DOL noted that leave taken and/or provided
before April 1, 2020, will not count toward the FFCRA requirements.
UDPATE: As of April 8, 2020, the DOL has issued three separate FAQs to provide
guidance concerning the FFCRA. On March 28, 2020, the DOL released
its third batch of questions and answers (FAQs #38-59), which became
effective April 1, 2020. According to the most up-to-date guidance,
on April 1, the FFCRA will require private employers with 499 or fewer
employees, and certain public employers, to provide covered employees
with emergency paid sick leave (EPSL) and emergency unpaid and paid
family leave (FMLA+). Additionally, the DOL also clarified some information
it previously provided in other questions and answers (FAQs #1-37).