Families First Coronavirus Relief Act (“FFCRA”)

The FFCRA became effective on April 1, 2020 and applies to employers with less than 500 employees. There are two parts to FFCRA: The first part addresses the need for an employee to take sick leave for COVID-19 related reasons and the second part is intended to expand FMLA leave for parents who are unable to work due to the need to care for children whose schools or daycare are closed. Let’s take a closer look at the two parts of FFCRA:

Sick Leave

Under the FFCRA, an employee qualifies for up to two weeks (80 hours) of paid sick leave if the employee is unable to work (or unable to telework) due to one of the following reasons:

  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.

The amount of paid sick leave is either full pay if the employee is taking leave for reasons 1-3, and 2/3rds pay if the employee is taking leave for reasons 3-6. Note there are maximums on the amount of sick leave pay. The maximum is $511 per day and $5,110 in total. If an employee is part-time, the 80 hours of sick leave is pro-rated.

Note that an employer’s own fear of being exposed at work (without an order from their physician) will not suffice.

Expanded FMLA Leave

Under the FFCRA, an employee who has been employed for a minimum of 30 days may qualify for expanded family leave if the employee is being offered work but is unable to perform the work due to the need to care for a child whose school or place of care is closed for reasons related to COVID-19. The expanded FMLA under FFCRA is paid at 2/3rds the employee’s regular salary and lasts up to 12 weeks, though the first two weeks are unpaid. There are maximum salary payments of $200 per day and $2,000 total. Note that FFCRA sick leave (described above) may be used to cover pay for the first two weeks of expanded FMLA which would otherwise be unpaid.

NOW LET’S LOOK AT THE ‘FINE PRINT’ TO SEE WHICH EMPLOYEES ARE ELIGIBLE FOR FFCRA LEAVE:

The Department of Labor (DOL) has issued both guidance and rules which interpret the FFCRA. First and foremost, you must still be employed in order to be eligible for FFCRA. If you were furloughed or laid off before April 1, you are not eligible for FFCRA. Instead, you are likely eligible for unemployment benefits.

While the DOL has clarified that Stay-At-Home or Shelter-In-Place Orders (such as the ones that most states have issued) will constitute “quarantine or isolation” orders for purposes of reason (1) above of the FFCRA, the DOL explains that eligibility will be interpreted narrowly.

Specifically, a requisite element to eligibility is that the employer have work for the employee (the work may be remote). Therefore, if an employer has closed its operations, even if the reason the employer did so was due to the employer’s need to comply with a stay-at-home order, then the fact that the employee is staying home in compliance with that same stay at home order does not make him or her eligible for leave under the FFCRA. The DOL attributes the employee staying home secondary to the employer’s need to comply with the stay-at-home order and/or due to the employer’s lack of business resulting from the stay-at-home order. The DOL’s example below is illustrative:

“An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at- home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.[1] That said, he may be eligible for state unemployment insurance and should contact his State workforce agency or State unemployment insurance office for specific questions about his eligibility.

[1] This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.”

Based on the DOL guidelines, I have put together a flowchart below to summarize eligibility under FFCRA:

FFCRA

For those employees who believe they are eligible for leave, there are certain documentation requirements. The employee must submit a written request to their employer that provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

If leave is based on a quarantine order or self-quarantine advice, the request needs to include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

If the leave request is due to a school closing or child care provider unavailability, the request needs to include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is closed, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.