New Leave Provisions Under The Families First Coronavirus Response Act By TJ Morton | FPA General Counsel, The Lockwood Law Firm
On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA)1. The FFCRA, which took effect April 1, is the second major legislative initiative passed by Congress to address the challenges arising from the spread of the novel coronavirus (the first was signed into law on March 6, and provides emergency funding for federal agencies to respond to the outbreak). 2 The FFCRA provides for a variety of benefits including paid leave, expanded unemployment benefits, and free COVID-19 testing. This article will discuss the expanded family and medical leave, paid sick leave, and tax credit provisions of the FFCRA. The FFCRA expands the Family and Medical Leave Act to allow eligible employees to take up to 12 weeks of leave to care for a child younger than 18 whose school is closed or whose child care provider is unavailable due to COVID-19. Employees who unable to work or telework for these reasons are entitled to receive two-thirds of their regular pay, but not more than $200 per day or $10,000 in the aggregate over the course of the 12-week period. Employees are not entitled to receive paid family and medical leave for the first 10 days of the 12-week period; however, employees may elect to use accrued existing vacation, personal, or sick leave to receive payment for the first 10 days. Alternatively, employees may use the paid sick leave provided under the FFCRA (discussed below) for the first 10 20
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days. Generally, employees who claim expanded family and medical leave are entitled to be restored back to their prior position at the conclusion of the leave. However, an exception applies for employers who employ less than 25 employees if the position held by the employee no longer exists due to economic conditions resulting from COVID-19. Only employers with fewer than 500 employees are required to provide the expanded family and medical leave. Employers with fewer than 50 employees are not required to provide expanded family and medical leave if such benefits would jeopardize the viability of the business.3 An employee is eligible for the leave if the employee has worked for the employer for at least 30 calendar days. The FFCRA allows an employer of an employee who is a health care provider or emergency responder to elect to exclude such employee from receiving expanded family and medical leave. According to the Department of Labor, a health care provider is anyone employed at the following facilities: 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
