Could the “Families First Coronavirus Response Act” Be Your Saving Grace?

Across the country, experiences of the coronavirus lockdown have varied significantly, based in large part on one’s health, work status, and family situation.  Some of the key factors shaping the current reality for individuals and families are: 

• whether or not individuals (or someone in their household) have been infected with the virus;
• whether they still have a job, and if so, whether their worksite is open or they have the ability to telework; and
• whether or not they have children at home who usually would be at school or with a childcare provider during the day. 

In recognition of the strain that the virus and lockdown are putting on individuals’ ability to do their jobs (even if they have the option of teleworking), Congress passed the “Families First Coronavirus Response Act” (FFCRA) in mid-March.  The FFCRA provides emergency paid sick leave or expanded family and medical leave for reasons related to COVID-19.  If you are trying to juggle work responsibilities while sick with the virus, caring for someone with the virus, or caring for children whose school or childcare provider has been closed, the FFCRA may offer some relief.

Who. FFCRA applies to employers with fewer than 500 employees.  However, small businesses with less than 50 employees may be exempt from providing emergency sick leave or expanded family and medical leave to their employees if doing so might interfere with the company’s ability to operate and/or pose a serious risk to its financial health.  Employees are eligible to request emergency paid sick leave if they are unable to work or telework, given that they:

1. are subject to a federal, state, or local quarantine or isolation order related to COVID-19
2. have been advised by health care provider to self-quarantine related to COVID-19
3. are experiencing COVID-19 symptoms and are seeking diagnosis from a health care provider
4. are caring for an individual subject to an order or self-quarantine described in lines (1) or (2)
5. are caring for a child whose school or childcare provider is closed for reasons related to COVID-19.

An employee is eligible for expanded family and medical leave if line (5) above applies.

What.  FFCRA mandates that covered employers provide their employees with up to two weeks (80 hours) of paid sick leave at the employee’s regular rate of pay, up to $511 per day, if lines (1), (2) or (3) above apply.  Employers must provide paid sick leave at 2/3 of the employee’s regular rate of pay, up to $200 per day, if lines (4) or (5) above apply.  Additionally, an employer must provide up to 10 more weeks of paid expanded family and medical leave at 2/3 pay, up to $200 per day, for employees who need to care for children whose school or childcare provider is closed (line 5 above).  Part-time employees are eligible for a pro-rated number of hours, based on their normal work schedule over a 2-week period.  While this seems to impose a significant cost on employers, FFCRA also includes a dollar-for-dollar tax credit that employers can claim on their 2020 tax returns for any leave paid under FFCRA.

When.  The FFCRA went into force on April 1^st, but employers had a grace period to begin complying with the statute.  The grace period expired on April 17^th, so this week is the first full week that the Department of Labor could take action against employers for violating the FFCRA.

Importantly, the FFCRA allows a significant amount of flexibility for employers and employees to work out solutions that are acceptable and beneficial for both parties.  For instance, if employees are requesting emergency sick leave due to a lack of childcare, they do not need to take the 80 hours of emergency sick leave over one 2-week period.  They can spread out the benefit over a longer timeframe (whether they are still reporting to a worksite or are teleworking) and use the sick leave incrementally or intermittently, as long as their employer approves of the arrangement.

If you believe that you would qualify for emergency leave under the FFCRA and need advice on how to broach the subject with your employer, please do not hesitate to call.  We can talk through the provisions of the law for you and your employer and try to determine the best approach, so that you can hopefully obtain some relief during this difficult time.