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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.
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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
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
Based on this guidance, pharmacists and pharmacy technicians, along with non-licensed pharmacy employees, can be excluded by their employer from receiving expanded family and medical leave on a case-by-case basis. The Department of Labor encourages employers to be judicious when excluding health care providers so as to minimize the spread of the novel coronavirus.
The FFCRA also allows employees to receive paid sick leave if the employee is unable to work or telework because the employee: 1. Is subject to a COVID-19 quarantine or isolation order. 2. Has been advised by a heath care provider to selfquarantine due to COVID-19. 3. Is experiencing symptoms of COVID-19 and seeking a medical diagnosis. 4. Is caring for an individual who is subject to COV
ID-19 quarantine or isolation order or has been advised by a health care provider to self-quarantine. 5. Is caring for a child whose school is closed or child care provider is unavailable due to COVID-19. 6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Full-time employees are entitled to up to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours equal to the number of hours that such employee works on average over a two-week period. Employees who claim paid sick leave for reason one, two or three above, are entitled to receive their regular pay, but not more than $511 per day or $5,110 in the aggregate over the benefit period. Employees who claim paid sick leave for reason four, five or six above, are entitled to receive two-thirds of their regular pay, but not more than $200 per day, or $2,000 in the aggregate over the benefit period.
Many of the same requirements that apply to the expanded family and medical leave also apply to paid sick leave. For example, only employers with fewer than 500 employees are required to provide paid sick leave and employers of employees who are health care providers or emergency responders may elect to exclude such employees from receiving paid sick leave. This means pharmacists and pharmacy technicians may be ineligible for paid sick leave if the employer elects to exclude those employees from eligibility. Unlike expanded family and medical leave, however, employees are not required to have worked for the employer for 30 calendar days to be eligible for paid sick leave.
The expanded family and medical leave and paid sick leave provisions of the FFCRA became effective on April 1 and apply to leave taken between April 1 to Dec. 31. After Dec. 31, the FFCRA’s leave provisions are no longer applicable.
In order to assist employers in paying for the expanded family and medical leave and paid sick leave, the FFCRA allows employers to receive payroll tax credits equal to 100 percent of the amounts paid to employees for expanded family and medical leave and paid sick leave for each calendar quarter. To the extent the amounts paid to employees for expanded family and medical leave and paid sick leave exceed the employer’s payroll tax obligation for the quarter, the employer is entitled to a refund of the excess credit. Employers are not eligible for tax credits for leave benefits paid to employees that are not in accordance with the provisions of the FFCRA.
In conclusion, the FFCRA requires employers of fewer than 500 employees to provide expanded family and medical leave and paid sick leave to employees who are unable to work or telework for COVID-19 related reasons. The FFCRA authorizes employers to receive fully refundable tax credits equal to the amount paid to employees for expanded family and medical leave and paid sick leave. Due to a provision that authorizes employers to exempt for health care providers from these benefits, pharmacists and pharmacy technicians may not be eligible to receive expanded family and medical leave or paid sick leave.
Pharmacies, pharmacists, and pharmacy technicians should work together to ensure that pharmacies have sufficient staffing to safely operate while allowing employees to utilize the FFCRA’s leave benefits when necessary to minimize the spread of the novel coronavirus.
References 1. The full text of the FFCRA is available at https://www. congress.gov/bill/116th-congress/house-bill/6201/text. 2. On March 27, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), the third, and so far the largest, legislative relief package in response to the coronavirus crisis. 3. The Department of Labor has issued guidance on when an employer with fewer than 50 employees is eligible for this exemption. See FAQs 57 and 58 at https://www.dol.gov/ agencies/whd/pandemic/ffcra-questions#5 4. See FAQ 56. at https://www.dol.gov/agencies/whd/ pandemic/ffcra-questions#5
