Call Today (646) 490-0221

Your Rights Under the Families First Coronavirus Response Act ("FFCRA")

The federal government enacted the Families First Coronavirus Response Act (“FFCRA”), which provides job-protected paid leave to employees affected by COVID-19. The law went into effect on April 1, 2020.

Below are some answers to frequently asked questions that address issues raised by employees about how the Act applies to them. Please understand that these are complex issues and answers may vary depending on your situation.

1. What is the FFCRA?

The FFRCA is a new law that provides a job-protected, paid leave of absence for an employee’s own COVID-19 condition (based on medical recommendations or an order of quarantine), care of someone who has or is suspected of having COVID-19 or an employee who is required to care for a child whose school or childcare provider has closed as a result of COVID-19.

The FFRCA is broken down into two Acts. The first is called the Emergency Paid Sick Leave Act (EPSLA). The second is called the Emergency Family and Medical Leave Expansion Act (EFMLEA).

The EPSLA provides for up to 2 weeks/80 hours of sick pay for employees who are required to be absent from work for specified reasons related to COVID-19. The EFMLEA amends the Family Medical Leave Act to provide for 12 weeks of paid leave (10 of which are paid at 2/3 pay) if an employee is required to be absent from work because the employee’s child’s care provider is closed for coronavirus-related reasons.

2. Does the FFRCA apply to all employers?

No. In the case of private-sector employers, the Act applies to employers of fewer than 500 employees. The statute permits the Department of Labor to create an exemption for employers with fewer than 50 employees. This exemption would apply if compliance with the Act “would jeopardize the viability of the business as a going concern.”

3. The company I work for was ordered to close by the government because it considered a non-essential business. Does that mean that I can take a leave of absence under this new federal law?

No. If you are not able to work because the business closed, your inability to work is for that reason and not because of your own COVID-19-related situation. There is no protection under the FFCRA in that situation.

4. What triggers entitlement to paid sick leave?

As to sick leave under the EPLSA, employers with fewer than 500 employees must provide paid sick leave to employees who are unable to work (including teleworking), because they:

  1. Are subject to a federal, state or local quarantine or isolation order;
  2. Have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. Are caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above;
  5. Are caring for his or her child whose school or place of care has been closed or whose childcare provider us unavailable due to COVID-19 precautions;
  6. Are 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.

Absences for the first three reasons (a-c) are treat ed somewhat differently than absences for the second three reasons (d-f).

5. What are the sick leave benefits under the EPSLA?

As to the EPLSA, full-time employees are eligible for 80 hours of leave. Part-time employees are eligible for the number of hours they work, on average, over a two-week period. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, a six-month average may be used to calculate the average daily hours. The rate of pay depends, in large part, on the reason for the leave. For the first three reasons stated above (a-c), the employee is entitled to their regular rate of pay, subject to certain caps. For the remaining reasons (d-f), such as caring for a child due to a school closure), the pay is capped at two-thirds of the employee’s regular rate of pay. These amounts are subject to caps on the amounts paid to employees. Specifically, leave taken for the first three reasons (a-c) is capped at $511 per day. Leave for the remaining three reasons (d-f) is capped at $200 per day.

6. I was laid off and tested positive for COVID-19. Does my employer owe me for 2 weeks of pay?

No. As discussed above, to be eligible under the FFCRA, the COVID-19-related reason needs to be the cause of the employee’s inability to work. In this example, the layoff (lack of work) is the reason the employee is not able to work. In addition, if you are laid off, you are no longer employed by your company and no longer entitled to benefits in any event.

7. I have been working remotely for a few weeks and I have now come down with COVID-19. Do I get paid leave?

It depends. If your illness prevents you from working, you may be eligible for leave for the number of hours you were teleworking if you can no longer work those hours. If you are asymptomatic and willing and able to work, then possibly not, although a decision to deny leave by a covered employer to someone who has COVID-19 is highly questionable.

8. I am having COVID-19 type symptoms. Can my boss require me to confirm a positive test result by a doctor’s note before paying me for leave?

No, you do not need a positive test result. However, when someone seeks leave for their own COVID-19 related reason, the employee must provide the name of the government entity that issued the Quarantine or Isolation Order or the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID–19. In addition to some basic information (name, dates of leave), employees need to provide a written statement confirming the reason they are seeking leave, and that they are unable to work due to this reason.

9. My employer recently cut pay for all my staff. Can my employer pay me at that new lowered rate if I am on leave?

No. The payment for FFCRA leave is based on a “lookback” approach: this is calculated using an average of hours and pay over the 6 months prior to the leave being taken. This should be undertaken carefully to ensure accuracy, particularly for employees who have a complex compensation structure (such as commissions).

10. What circumstances trigger coverage under the EFMLEA for longer benefits?

As to the longer coverage under the EFMLEA, the circumstances are narrow. This coverage is available only when an employee is unable to work (or work remotely) because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19. This leave is NOT available for the remaining five reasons listed above, such as the employee’s own coronavirus-related illness.

11. What are the benefits under EFMLEA (expanded FMLA)?

The EFMLEA provides a measure of job protection, much like the Family Medical Leave ACT (FMLA). This protection lasts for 12 weeks.

Leave under EFMLEA is unpaid for the first 10 days of leave. It is possible that pay may be available for those 10 days under the sick leave provision of the EPLSA. After the first 10 workdays, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with varied schedules, a six-month average is to be used to calculate the rate of pay.

12. Can I get both EPSLA and EFMLEA benefits?

Yes. If you are absent from work to care for a child as a result of the virus-related school or da care closing, you could get 10 days of EPSLA sick leave benefits during the first 10 working days and then 10 weeks of lesser EFMLEA benefit until coverage is exhausted.

Categories: