The Families First Coronavirus Response Act (FFCRA), signed by President Trump on March 18, 2020, requires covered employers to provide their employees with paid sick leave (Emergency Paid Sick Leave Act or EPSLA) or expanded family and medical leave (Emergency Family and Medical Leave Expansion Act or Expanded FMLA) for specific reasons related to COVID-19. The U.S. Department of Labor (DOL), Wage and Hour Division (WHD) administers and enforces these new paid leave requirements. These provisions apply April 1, 2020, through December 31, 2020.

Information concerning compliance with the COVID-19 paid leave requirements from the DOL follows. (Fact Sheet for Employers.)

Generally, the FFCRA states that covered employers must provide the following paid leave to all employees (employers of health care providers or emergency responders may elect to exclude employees from eligibility):

Emergency paid sick leave (EPSLA)

• Two weeks (up to 80 hours) of paid sick leave at the employee's regular rate of pay if the employee is unable to work because the employee is quarantined (pursuant to a federal, state or local government order or advice of a health care provider), and/or is experiencing COVID-19 symptoms and seeking a medical diagnosis
• Two weeks (up to 80 hours) of paid sick leave at 2/3 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 (pursuant to 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

Paid expanded family and medical leave (Expanded FMLA)

A covered employer must provide the following paid leave to employees who are employed for at least 30 days (employers of health care providers or emergency responders may elect to exclude employees from eligibility):

• Up to an additional 10 weeks of paid expanded family and medical leave at 2/3 the employee's regular rate of pay if an employee 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.

Covered employers

The paid sick leave and expanded family and medical leave provisions apply to certain public employers, private employers and tax-exempt organizations with fewer than 500 employees (exceptions apply to federal employees).

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. (See Department FFCRA regulations expected in late April 2020).

For more information on how employers determine if they are covered, see the DOL's frequently asked questions.

Qualifying reasons for paid leave

An employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

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

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

Duration of leave

For reasons 1-4 and 6, a full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a 2-week period.

For reason 5, a full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of leave pay

For reasons 1, 2 or 3,employees taking leave must be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For reasons 4 or 6, employees taking leave must be paid 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For reason 5, employees taking leave must be paid 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period — two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave). Note that an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave.

Paid sick time under the FFCRA does not carry over from one year to the next and employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement or other separation from employment.

Employer notice requirements

All covered employers are required to post a notice of the FFCRA paid leave requirements in a conspicuous place on its premises.

Employee protections

Employers are prohibited from discharging, disciplining or otherwise discriminating against any employee who takes paid sick leave under the FFCRA and who files a complaint or institutes a proceeding under or related to the FFCRA's paid leave requirements.

Penalties and enforcement

Employers in violation of the requirement of the first two weeks of paid sick time or that unlawfully terminate employees will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act.

The DOL will observe a temporary period of nonenforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the FFCRA. For purposes of this nonenforcement position, "good faith" exists when violations are corrected and the employee is made whole as soon as practicable by the employer, the violations were not willful and the DOL receives a written commitment from the employer to comply with the FFCRA in the future.

Summary of FFCRA paid leave requirements

Notes:

• See U.S. Department of Labor Fact Sheet for Employers.
• Paid sick time under the FFCRA does not carry over from one year to the next and employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement or other separation from employment.
• An employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
• Some states (e.g., Colorado and New York) and localities are imposing their own COVID-19 paid leave requirements. You must comply with the law that is more favorable to the employee.
• Consult with your labor law attorney for more information.

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