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Employment Law Alert – Top 10 Things Employers Need to Know About the FFCRA

October 1, 2020

There is an abundance of information on the internet and elsewhere about the Families First Coronavirus Response Act (FFCRA). This can be difficult for employers to navigate, especially when interpretations of FFCRA provisions keep evolving.

Below are the top ten takeaways for employers regarding the FFCRA.

1. Paid Sick Leave. Employers covered under the FFCRA must provide eligible employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave:

a. paid at a rate of 100%, up to $511 daily and $5,110 total, if the employee is unable to work, including unable to telework, because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

b. paid at a rate of 2/3, up to $200 daily and $2,000 total, if the employee is unable to work, including unable to telework, because the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine related to COVID-19, or if the employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

2. Paid Expanded Family and Medical Leave. Employers covered under the FFCRA must provide eligible employees up to a total of 12 weeks of paid leave (two weeks of paid sick leave and an additional ten weeks of paid expanded family and medical leave), paid at a rate of 2/3, up to $200 daily and $12,000 total, if the employee is unable to work, including unable to telework, because the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

3. Covered Employers. The FFCRA applies to all private employers with fewer than 500 employees, and government employers with more than one employee. All employees (including full-time, part-time, and temporary employees) within the U.S. count when determining the number of employees. Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school closings or the unavailability of child care if the leave payments would jeopardize the viability of the business as a going concern.

4. Eligible Employees. FFCRA leave is only available to employees who otherwise have work available. FFCRA leave is not available to employees who are not working because they are furloughed, or because their employer closed temporarily or indefinitely, even if they are also not working because of otherwise eligible FFCRA reasons. Employees are eligible for up to two weeks of paid sick leave under the FFCRA regardless of length of employment. However, in order to qualify for expanded family and medical leave, the employee must have been employed for at least 30 calendar days. Further, there are certain exclusions from FFCRA leave that apply to who employees who are defined as health care providers or emergency responders.

5. In Effect Until December 31, 2020. The FFCRA is temporary, and is only in effect until December 31, 2020.

6. Payroll Tax Credit. Businesses and tax-exempt organizations that are required to provide paid FFCRA leave are eligible for refundable tax credits that reimburse them, dollar-for-dollar, for the cost of providing the paid FFCRA leave.

7. Remote and Hybrid School. Employees who are caring for children who attend schools operating remotely or on a hybrid schedule are permitted to take paid FFCRA leave on days when the child is not permitted to attend school in person, if the employee needs leave to actually care for the child during that time and there is no other suitable person available to do so. Employees who are given the choice between in-person and remote learning and choose to have their child participate remotely are not eligible to take paid leave under the FFCRA because the school is not “closed” for COVID-19 related reasons.

8. Approval for Intermittent FFCRA Leave. Employees need to have employer approval in order to take FFCRA leave intermittently. However, FFCRA leave taken in full-day increments to care for children whose schools are operating on a hybrid basis is not considered intermittent for purposes of such approval, because the school opens and closes repeatedly, and each day of closure is a separate reason for leave.

9. Notice and Documentation. Employees need to provide employers notice and documentation as soon as practicable. Employers must document the name of the employee requesting leave, the date(s) for which leave is requested, the reason for the leave, and a statement from the employee that he or she is unable to work because of that reason. If the employee requests leave due to a quarantine or isolation order or to care for an individual subject to such an order, employers must also document the name of the government entity that issued the order. If the employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, employers must also document the name of the health care provider. If the employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, employers must also document the name of the child, the name of the school, place of care, or child care provider, and a statement from the employee that no other suitable person is available to care for the child. Additional documentation is required to be maintained in connection with claiming tax credit under the FFCRA, pursuant to forms, instructions, and information provided by the Internal Revenue Service.

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

Shulman Rogers employment and labor attorneys are available to discuss this Alert and these topics further.


MORE INFORMATION

The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.