In the continued effort to reduce the developing challenges caused by the novel coronavirus, the U.S federal government enacted the Families First Coronavirus Response Act (FFCRA). The legislation has two paid leave provisions related to COVID-19. Congress enacted the legislation on March 18th, 2020 and became effective April 1st, 2020 for a temporary period through December 31, 2020.
The Emergency Family and Medical Leave Expansion Act which amends FMLA and the Emergency Paid Sick Leave Act both cover public employers with one employee or more and private employers with fewer than 500 employees. Employers with fewer than 50 employees may be exempt if compliance would jeopardize the viability of the business as a going concern. For each provision, there are corresponding tax credits.
Emergency Paid Sick Leave Act
If an employee is unable to work or telework due to a qualified reason related to COVID-19, the Emergency Paid Sick Leave Act requires covered employers to provide 100 percent of the employee’s regular pay for two weeks, whether full-time or part-time, at a maximum of $511 per day and $5,110 total.
The Emergency Paid Sick Leave Act entitles employees to two weeks of paid leave at their regular rate of pay if:
“(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.”
For other qualifying reasons related to COVID-19 that make an employee unable to work or telework, the act requires covered employers to provide full-time and part-time employees with two weeks of paid leave at a two-thirds of their regular pay at a maximum of $200 per day and $2,000 total.
The Emergency Paid Sick Leave Act entitles employees to two weeks of paid leave at a two-thirds of their regular rate of pay if:
“ The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
 The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
 The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act is a temporary amendment to the Family Medical Leave Act (FMLA) that applies to covered employers.
Under this amendment, a covered employee may take up to 12 weeks of job-protected leave if, as a result of an emergency related to COVID-19, he/she “is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable.”
An employee may take leave to care for a minor child under this provision, but it does not apply to other family members, although regular FMLA may apply in such cases.
While the first 10 days of leave may be unpaid under the expansion act, for the remainder of the 12 weeks, covered employers are required to provide paid leave at a two-thirds of the employee’s regular rate of pay. Paid leave payments may reach a maximum of $200 per day and $10,000 total.
Employees are eligible to take paid leave under the Emergency Family Medical Leave Expansion Act if they have been employed for a covered employer for 30 days or more.
For the duration of the expansion act, a requirement under regular FMLA that does not apply is that an employee must work at an employment site that has at least 50 employees within a 75-mile radius.
The language that remains unchanged in FMLA applies to the emergency expansion act. This includes the prohibition of discrimination and retaliation against employees who seek their entitlement under this provision.
Under the Emergency Family Medical Leave Expansion Act, eligible employees returning from leave are to be restored to their previous position or an equivalent position. If the position the employee held when they took leave is no longer available, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available within a one-year period.
According to the Department of Labor, for qualifying COVID-19 related leaves taken while the FFCRA is in effect, “every dollar of expanded family and medical leave (plus the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer.”
Families First Coronavirus Response Act of 2020, Pub. L. No. 116-127, 134 Stat. 177 (2020). Retrieved from https://www.congress.gov/116/plaws/publ127/PLAW-116publ127.pdf
U.S. Department of Labor (2020). Families First Coronavirus Response Act: Employee Paid Leave Rights. Retrieved from https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
U.S. Department of Labor (2020). Families First Coronavirus Response Act: Employer Paid Leave Requirements. Retrieved from https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
U.S. Department of Labor (2020). Families First Coronavirus Response Act: Questions and Answers. Retrieved from https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
U.S. Department of Labor (2020). U.S. Department of the Treasury, IRS and the U.S. Department of Labor announce plan to implement coronavirus-related paid leave for workers and tax credits for small and midsize businesses to swiftly recover the cost of providing coronavirus-related leave [Press Release]. Retrieved from https://www.dol.gov/newsroom/releases/osec/osec20200320