Understanding the Family First Coronavirus Response Act

Written by Jessica LaFever-Smith

Understand your responsibilities to your public sector employees under the FFCRA.

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The Families First Coronavirus Response Act (FFCRA) offers employee paid leave rights if an employee is unable to work because he or she contracts COVID-19, is caring for a family member who has contracted the virus, or is caring for a dependent whose child care service is closed due to COVID-19. To ensure compliance and to protect your employees, familiarize yourself with the necessary details of this new employment legal requirement.

What is the Families First Coronavirus Response Act?

The FFCRA is administered by The U.S. Department of Labor’s Wage and Hour Division (WHD). Under certain circumstances,TThe FFCRA requires employers to provide their employees with either paid sick leave or expanded family and medical leave if specific criteria are met that relate to COVID-19 contagion. Its provisions are in effect From April 1, 2020, through December 31, 2020.

What Employers Must Comply with FFCRA?

FFCRA provisions apply to certain public and private sector employers with fewer than 500 employees. Eligible public sector entities include the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar government entity.

Small Employer Exemptions

Small businesses with less than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the businesses’ viability.

Which Employees are Eligible for Benefits Under FFCRA?

An employee qualifies for paid sick time under FFCRA if the employee is unable to work (or unable to telework) because they:

        1. Are subject to a Federal, State, or local quarantine or isolation order related to COVID-19
        2. Have been advised by a healthcare provider to self-quarantine related to COVID-19
        3. Are experiencing COVID-19 symptoms and are seeking a medical diagnosis
        4. Are caring for an individual subject to a local quarantine or isolation order related to COVID-19
        5. Are caring for a child whose school or place of care is closed (or their childcare provider is unavailable) for reasons related to COVID-19
        6. Are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or their child care provider is unavailable) for reasons related to COVID-19.

Exclusions for Health Care Workers

Public-sector health care providers and emergency responders may be excluded by their employer from being able to take paid sick leave under FFCRA. This exclusion comes as an effort by the federal government to enable the maximum availability of healthcare providers to aid the nation’s COVID-19 response. Under FFCRA, the term “healthcare provider,” includes, “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” The mandate includes temporary locations providing similar medical services.

For purposes of FFCRA, “healthcare provider” also includes clinical and administrative personnel, more specifically:

  • Any individual employed by an entity that contracts with any of the previously listed entities to provide services or to maintain the operation of the facility
  • Anyone employed by any entity that provides medical services, produces medical products or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments
  • Any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to the COVID-19 pandemic

What are Employees Entitled to Under FFCRA?

Under the FFCRA, eligible employees for which the previously listed reasons are applicable are eligible to receive:

  • Two weeks or up to 80 hours of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (under Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks or up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (under Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is 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 ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19

Calculating Applicable Pay

Note the following clarifications when calculating pay, particularly for part-time employees:

  • If an employee’s schedule varies from week to week, base payment on the agreed-upon typical schedule of weekly hours
  • The Emergency Family and Medical Leave Expansion Act requires employers to pay an employee for hours they would have been normally scheduled to work even if that is more than 40 hours in a week; however, the Emergency Paid Sick Leave Act requires that employers pay sick leave only up to 80 hours over two weeks
  • Pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act
  • The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days, and it only includes leave taken because the employee must care for a child whose school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons

Employee Communication Requirements

When an employee foresees needing to take sick leave under FFCRA, they should notify their employer as soon as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures to continue receiving eligible paid sick time.

Click here for more information on HR laws that apply to the public sector during a disaster event.

Note: This content is not intended as legal advice or counsel.