Employer Alert: Emergency FMLA and Sick Leave Expansion Signed Into Law Under the Families First Coronavirus Response Act (FFCRA)

Mar 20, 2020 | Written by: Leslie A. Parikh, Esq. | Share

On March 18, 2020, the federal Families First Coronavirus Response Act (FFCRA) was signed into law.  The FFCRA contains two separate acts that provide paid leave for absences resulting from coronavirus (COVID-19):  the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.

The law goes into effect on April 2, 2020 and will expire on December 31, 2020.

Emergency Family and Medical Leave Expansion Act

Remarkably, unlike current family leave laws, the Emergency Family and Medical Leave Expansion Act applies to all employers with less than 500 employees. Eligible employees include full and part-time employees with at least 30 calendar days of employment.

Job-protected family leave is provided to employees to take care of a child under 18 who is home because of school or daycare closures related COVID-19. The first 10 days of this FMLA leave are unpaid, however, employees in New Jersey can elect to use existing sick leave time under New Jersey’s earned sick leave law. The employer cannot force an employee to use accrued paid leave.

After the first ten days of leave time, employees must be paid up to two-thirds of their salary, and benefits will vary between full-time and part-time employees. In no event shall paid leave exceed $200 per day and $10,000 in the aggregate. Employers with 50 employees or less can apply for an exemption to the law if they can show that paying this benefit would “jeopardize the viability of the business.” Employers with 25 employees or less are exempt if an employee’s position is eliminated due to economic conditions.

As with typical FMLA leave, group health insurance coverage, if any, that the employee and dependents had when the leave commenced shall be continued in force (subject to certain conditions).

Emergency Paid Sick Leave

The law provides 80 hours of paid sick leave to full-time employees. Paid sick leave is also available for part-time employees on a pro-rata basis. Leave time can be used for the following purposes:  

1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. the employee is caring for an individual subject or advised to quarantine or isolation;
5. the employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions; or
6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

When an employee takes leave for reasons (1), (2) or (3) above (generally, an employee’s own illness or quarantine), the employee is entitled to 100% of pay, capped at $511 per day ($5,110 in the aggregate).  When leave is taken for reasons (4), (5), or (6) (care for others or school closures), the employee is entitled to 2/3rds of pay, capped at $200 per day ($2,000 in the aggregate).  Employers with 50 employees or less can apply for an exemption if paying sick leave would “jeopardize the viability of the business.”

Employer Tax Credits

Employers are eligible for reimbursement of the amount paid under this emergency legislation through payroll tax credits.

We will keep you updated as we learn of new legislation or employment information pertaining to COVID-19.