What Employers Need to Know About the Families First Coronavirus Response Act

Mar 17, 2020 | Written by: Leslie A. Parikh, Esq. | Share

In the wake of the coronavirus pandemic, employers are facing overwhelming questions regarding employer obligations, complying with government directives, and paid time off.

The Families First Coronavirus Response Act (FFCRA), if passed by the Senate, will provide certain relief measures for those affected by the COVID-19 pandemic, including emergency paid sick leave and expanded FMLA coverage.  FFCRA addresses changes at the federal level, and does not address the New Jersey Assembly bill package related to COVID-19.

As written, the FFCRA imposes significant obligations on employers with fewer than 500 employees.  Most importantly, mandatory paid sick leave will be available through the Emergency Paid Sick Leave Act and an expanded Family and Medical Leave Act.

Emergency Paid Sick Leave

Covered employers under the Bill will be required to provide all employees with additional amounts of paid sick leave through December 31, 2020 to:

• Self-isolate because the employee was diagnosed with coronavirus.

• Obtain a medical diagnosis or care if the employee is experiencing symptoms.

• Comply with a recommendation or order of a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of 1) exposure of the employee or 2) the exhibition of symptoms of the coronavirus by the employee.

• Care for or assist a family member or employee who is self-isolating because the family member has been diagnosed with the coronavirus or is experiencing symptoms of coronavirus and needs to obtain diagnosis or care.

• Care for or assist a family member of the employee if the family member is subject to an order or recommendation from a public healthcare official to stay out of the community because of exposure or the exhibition of the symptoms of the coronavirus.

• Care for children if school has been closed or a childcare provider has closed due to the coronavirus.

Full-time employees of covered employers are entitled to 80 hours of emergency sick leave time. Part-time employers are entitled to an amount of emergency paid sick leave pay up to the average number of hours they work over a two-week period. There is no length of employment requirement in order to be eligible for the benefits.

Pursuant to the Bill, employers will be required to pay every employee who utilizes the emergency paid sick leave at a rate of compensation no less than the employee’s regular pay. However, for employees who take emergency paid sick leave for the care of others or because a school or daycare center has been closed due to the virus, pay shall be no less than two thirds of the regular rate of pay.

It should be understood that emergency paid sick leave under the act is in addition to, and does not replace, other forms of sick or other paid leave time.

Emergency Family and Medical Leave Expansion Act

Pursuant to the FFRCA, eligible employees will be able to take up to 12 weeks of public health emergency leave under the following circumstances:

• To comply with a recommendation or order of a public health official who has appropriate jurisdiction or healthcare provider on the basis that (1) the physical presence of the employee of the job would jeopardize the health of others because the employee has been exposed to the coronavirus or exhibited symptoms and (2) the employee is unable to perform the functions of the position of such employee and comply with such recommendations or order.

• To care for a family member with respect to the criteria set forth above.

• To care for their children under the age of 18 if the school or place of care has been closed due to the virus or other public health emergency.

Unlike the existing leave act, the expansion act allows employers to provide unpaid leave for the first 14 days of the health emergency. However, employees can utilize accrued vacation or sick time during this period.

Importantly, if an employee continues to take leave in excess of the first 14 days, employers are required to provide the employee with paid leave for the duration of the qualifying leave at a rate that is not less than two thirds of the employees regular rate of pay.

Employees will be eligible by merely having been employed by the current employer for a minimum of 30 days.

Additionally, even employers with fewer than 50 employees who previously did not need to comply with the act will need to become familiar with the act’s obligations moving forward.

Update:  the Families First Coronavirus Response Act was signed by President Trump on March 18, 2020 and will go into effect 15 days from that date.