Families First Coronavirus Response Act (FFCRA)

By Kristen M. Kraus:

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law.  The two main provisions of this law are the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (EPSLA).

EFMLEA goes into effect April 1, 2020 and remains in effect until December 31, 2020.  The law will apply to all employers with more than 50 but less than 500 employees.  Unlike the FMLA which requires that an employee be employed with the employer for 12 months prior to the request for leave, under EFMLEA, employees are eligible after only 30 days of employment.  However, EFMLEA applies only when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 or when the child’s school or daycare is closed due to coronavirus.  Unfortunately, the Act does not define the terms “unable to work or telework.”

Under EFMLEA, the first 10 days are unpaid.  However, an employee can use the leave under the EPLSA to cover the first 10 days.  EFMLEA provides a total of 12 weeks of leave.  After the first 10 days, the employee will be paid 2/3 of his or her regular salary or hourly rate, subject to certain limitations.  The employee is capped at a maximum of $200 per day or $10,000 total.  Like the FMLA, an employee is required to be restored to his or her position or a substantially similar position at the end of the leave.  However, an employer with fewer than 25 employees may not be required to restore an employee to his or her position if the position no longer exists.  One very important point to note is that under EFMLEA, an employee can use existing paid leave, but the employer cannot require this.   This represents a major difference between the FMLA and EFMLEA.

Like EFMLEA , the EPSLA also goes into effect April 1, 2020 and remains in effect until December 31, 2020.  EPSLA will also apply to all employers with more than 50 but less than 500 employees.  However, under EPSLA, all employees are immediately eligible.

An employee will be eligible for EPSLA if any of the following apply:

1. The employee is subject to a federal, state, or local quarantine or isolation order

• 1. The employee has been advised by a health care provider to self-quarantine
  2. The employee is experiencing symptoms of coronavirus and is seeking medical diagnosis
  3. The employee is caring for a person who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine
  4. The employee is caring for a son or daughter of the employee whose school or daycare is closed
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or Secretary of Labor

However, determining the amount of pay under the EPSLA is a bit more complex.  Generally speaking, full-time employees are entitled to 80 hours of paid leave, while part-time employees are entitled to be paid for the number of hours per day they worked on average over the prior two-week period.  If an employee is off work for reasons 1-3 listed above, the employee will be subject to a limit of $511 per day and $5,110 total during the leave period.  If an employee is off work for reasons 4-6 above, the employee is subject to a $200 per day limit and $2000 total during the leave period.

While these new laws appear overwhelming and potentially burdensome to smaller employers, there are tax credits available which in some cases will completely offset the cost of these benefits.

Dworken & Bernstein is here to assist you during this complicated and uncertain time.  If you have any questions related to the Families First Coronavirus Act please call us at (440) 352-3391.