Throughout the chaos and unease of the COVID-19 pandemic, questions abound. Employers and employees, specifically, have many FFCRA questions. According to the Department of Labor, here are some of the answers to the most common FFCRA questions.
What is FFCRA?
The FFCRA, also known as the Families First Coronavirus Response Act, is a law that took effect on April 1, 2020. The FFCRA requires certain employers to provide employees with paid sick leave under the Emergency Paid Sick Leave Act (EPSL) or expanded paid family and medical leave under the Emergency Family and Medical Leave Expansion Act (expanded FMLA) for several reasons related to COVID-19.
What does the FFCRA provide?
The FFCRA provides that employees of covered employers are eligible for one of the following:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is (1) unable to work or telework because the employee is quarantined (due to a federal, state, or local government order or the advice of a health care provider) and/or (2) experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is (1) unable to work or telework while caring for an individual subject to quarantine (due to a federal, state, or local government order or the advice of a health care provider), (2) unable to work or telework because of a need to care for a child (either a minor child under 18 years of age or an adult child who has a mental or physical disability and is incapable of self-care because of that disability) whose school or child care provider is closed for reasons related to COVID-19, and/or (3) experiencing a substantially similar condition as specified by the secretary of health and human services, in consultation with the secretaries of the treasury and labor; and
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee who has been employed for at least 30 calendar days is unable to work or telework due to a need to care for a child whose school or child care provider is closed for reasons related to COVID-19.
Do “health care providers” qualify for paid sick leave and/or expanded family and medical leave?
Anyone employed by virtually any type of health care provider may be exempted from the paid leave provisions.
My business has fewer than 50 employees. Do I have to provide paid sick leave or expanded FMLA?
Possibly… A small business is exempt from providing mandated paid sick leave or expanded FMLA in cases where the following conditions are true:
- The employer employs fewer than 50 employees.
- The leave is requested because the child’s school or place of care is closed, or the childcare provider is unavailable, due to reasons related to COVID-19.
- An authorized officer of the business has determined one of the following conditions is satisfied:
- The provision of paid sick leave or expanded FMLA would result in the small business’s expenses and financial obligations exceeding available business revenues and would cause the small business to cease operating at a minimal capacity.
- The absence of the employee(s) requesting paid leave or expanded FMLA would entail a substantial risk to the financial health or operational capabilities of the small business because of the specialized skills, knowledge of the business, or responsibilities of the employee(s).
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting paid sick leave or expanded FMLA, and the labor or services are needed for the small business to operate at a minimal capacity.
The DOL does encourage employers and employees to work together to reach the best solution for ensuring employee safety and sustaining the business.
Are public-sector employees are entitled to paid sick leave?
Most of the time. Employees of a public agency, and employees of a unit of government such as the United States, a state, a city, a parish, or a similar government entity, are likely entitled to paid sick leave. Federal employees are encouraged to seek guidance from their respective employers as to eligibility.
Are public-sector employees are entitled to expanded FMLA?
Sometimes. It depends on the circumstances. Generally, employees of a non-federal public agency are entitled to expanded FMLA. Again, federal employees are encouraged to seek guidance from their respective employers as to eligibility.
If the business is, temporarily or permanently, closed, are employees still eligible for paid sick leave or expanded FMLA?
No. This is true regardless of whether the work site is closed for lack of business or because it is required to close pursuant to a federal, state, or local order. If an employee happens to be on leave at the time the workplace is closed, the employee is due any paid sick leave or expanded FMLA used before the business closed but the employee is no longer entitled to any paid leave after the work site closes.
If the business is open but furloughs an employee on or after the 1st of April, is the employee entitled to paid leave?
No. If employees are furloughed on or after April 1, because there is not enough work for the employees, regardless of whether the company remains open, those furloughed employees are not entitled to take paid sick leave or expanded FMLA.
What can an employee do if the company refuses to provide paid sick leave and/or expanded FMLA?
The DOL is encouraging employees to first discuss their concerns with their employer. But regardless of whether an employee raises the issue with you, the employee can go to the Wage and Hour Division (WHD) of the DOL to complain. And, in most cases, the employee will be able to file a lawsuit against the company directly, without contacting WHD. (Public-sector employees may face additional hurdles.)
These are just a few FFCRA questions that come up and the DOL has highlighted. We can help you work through any additional questions or evaluate your specific situation. You are not alone!