Federal Expansion to Paid Family and Medical Leave under the FFCRA
The Families First Coronavirus Response Act (“FFCRA“) is new federal legislation that expands paid sick leave and family/medical leave in response to the drastic changes in the workforce since the Coronavirus (COVID-19) pandemic began. The FFCRA obligations and procedures are effective April 1, 2020, until December 31, 2020, subject to the 30-day enforcement grace period outlined in the Wage & Hour Division’s Field Assistance Bulletin No. 2020-1. Employers must comply with the FFCRA in addition to their existing obligations under the Family and Medical Leave Act (“FMLA“) and the Fair Labor Standards Act (“FLSA“).
Covered Employers: The FFCRA expands paid sick leave and family/medical leave for private employers with fewer than 500 employees, and for certain public employers. In April of 2020, the Department of Labor is expected to publish additional exceptions for private employers with fewer than 50 employees where compliance with the FFCRA would “jeopardize the viability of the business”.
Reimbursement for FFCRA benefits: Covered employers are eligible for a full reimbursement of qualifying wages and health insurance coverage costs paid under the FFCRA through tax credits by the Department of Treasury. Employers unable to pay the cost of FFCRA benefits up-front can request an advance from the IRS by submitting a claim form.
Certain employers may also qualify for short-term loans under the U.S. Small Business Administration’s Paycheck Protection Program. Further details about this program will be published on our website soon, so keep checking in for that update.
Requirements: Employers must post a notice of FFCRA requirements in a conspicuous place on their premises by April 1, 2020. The Department of Labor published a model notice that employers may use for this purpose online at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Qualifying Reasons: Under the FFCRA, an employee is qualified for paid leave if they are unable to work in person or remotely because one of the following qualifying reasons occur:
- The government issues a quarantine or isolation order related to COVID-19 that prevents the employee from working.
- The employee has been advised by their doctor to self-quarantine because of COVID-19.
- The employee has COVID-19 symptoms and they are seeking a medical diagnosis.
- The employee is caring for an individual subject to an order described in (1) or self-quarantine described in (2).
- The employee is caring for a child whose place of education or childcare is closed or unavailable because of COVID-19.
- The employee experiences a condition substantially similar to reasons (1) through (5).
Duration of Pay: All current employees are entitled to two weeks of paid sick leave. The duration of paid leave is calculated based on whether the employee is full-time or part-time.
- Full-time employees receive two weeks of paid leave, up to 80 hours over 10 days.
- Part-time employees receive paid leave based on the average hours worked over a two-week period. If the part-time employee has a variable schedule, duration of leave is based on the average hours worked per day over the previous six months.
Expanded family leave: Employees that have been employed for at least thirty days and require leave because of reason (5) are entitled to “Expanded family leave”. This means they receive two weeks of leave plus an additional ten weeks of paid expanded family leave.
Employers with less than 50 employees may be exempt from providing the additional ten weeks if doing so would jeopardize the viability of the business. The Department of Labor will issue regulations in the near future. Until then, if an employer uses this exemption, the employer should document its determination to justify its exemption.
Rate of Pay: The rate of pay is based on the qualifying reason for leave.
- If the employee requires leave because of reasons (1), (2), or (3), they must be paid the higher of (a) their regular rate of pay, or (b) the applicable minimum wage up to $511 per day. This equals $5,110 for two weeks.
- If the employee requires leave because of reasons (4), (5) or (6), they must be paid the higher of (a) two-thirds their regular rate of pay, or (b) two-thirds of the applicable minimum wage up to $200 per day. This equals $2,000 for two weeks.
- Employees leaving because of reason (5) can receive up to ten additional weeks of expanded family leave, paid at two-thirds their regular rate of pay, up to $200 per day. This equals $10,000 over ten weeks. Employees falling within this category can choose to use accrued PTO from the Employer’s existing PTO policy in lieu of the FFCRA benefit for the first ten days. Employers can also choose to require employees to receive PTO under an existing policy in lieu of the FFCRA benefit.
Are the FFCRA paid leave benefits job-protected?: For business with 25 or more employees, the employee receiving FFCRA benefits (either two weeks of sick leave, ten weeks of expanded family leave, or both) must receive the same or similar position, pay, benefits, and conditions of employment upon their return.
Businesses with 24 or fewer employees are not required to protect the employee’s position upon their return from leave if the employer had to shut down or reduce operations, rendering the position obsolete, as long as they made “reasonable efforts” to protect their position. Reasonable efforts require these employers to reach out to the employee if a similar role becomes available for up to a year.
Summary: The overall benefit structure can be summarized by the following table:
Emergency Paid Sick Leave
|Duration of Leave|
Rate of Pay / Maximum
|1. Government order for isolation or quarantine||2 Weeks (up to 10 days)||Regular rate of pay|
Up to $511 per day
Maximum $5,110 for 2 weeks
|2. Doctor’s order for isolation or quarantine|
|3. Symptomatic and seeking diagnosis|
|4. Caring for another affected by reason (1) or (2)||2 Weeks (up to 10 days)||2/3 of regular rate|
Up to $200 per day
Maximum $2,000 for 2 weeks
|5. Caring for a child whose school or care provider is unavailable due to COVID-19|
|6. Experiencing a “substantially similar condition”|
Expanded Family Leave
|Qualifying Reason||Duration of Leave|
Rate of Pay / Maximum
|5. Caring for a child whose school or care provider is unavailable due to COVID-19||2 Weeks (up to 10 days) initial duration||Employee receives|
Emergency Paid Sick Leave
for the first 2 weeks
|Additional 10 weeks||2/3 of regular rate|
Up to $200 per day
Maximum $10,000 for 10 weeks
U.S. Department of Labor – Wage and Hour Division
- FAQ about the notice requirement under the FFCRA
- FAQ about other FFCRA requirements and procedures
- Effect of COVID-19 on the FLSA
- Effect of COVID-19 on the FMLA
If you have additional questions about how employers should respond to the various state and federal restrictions imposed during this pandemic, please contact one of our offices to schedule a telephonic conference with one of our attorneys.
HaasCaywood PC continues to monitor the numerous executive orders, notices, and guidelines being issued by our state and federal officials related to COVID-19 and are prepared to assist and advise you and your business in relation to the same.
Other HaasCaywood PC COVID-19 Related Blogs
- Remote Notarization and Witnessing for Estate Planning, Real Estate Closings, and Other Transactions
- “Paycheck Protection Program” Loans for Small Businesses
- Michigan Employer Guidelines under Governor Whitmer’s “Stay at Home” Order
- Expanding Paid Family and Medical Leave Due to COVID-19: What Employers and Employees Need to Know
- Disaster Loan Assistance from the U.S. Small Business Administration
- Local Court Closures Due to COVID-19
Prepared on April 7, 2020 by HaasCaywood PC