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

In response to the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA).  The FFCRA can be broken down into two sections.  The FMLA amendments are in the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the new paid sick leave law is under the Emergency Paid Sick Leave Act (EPSLA).  Both laws apply to private employers with fewer than 500 employees and government agencies.  Both laws also became effective on April 1, 2020 and expire on December 31, 2020.  We want you to know your rights, so we have broken down the FFCRA for you below.

EFMLEA Overview

Who is eligible? Any employee who has been employed for the 30 calendar days before the leave is eligible. If an employee worked for a company as a temporary employee, and the company subsequently hires him or her on a full-time basis, the employee may count any days he or she previously worked as a temporary employee toward this 30-day eligibility period.

What type of reason is eligible for EFMLEA?  An employee may elect to use EFMLEA if they are unable to work or telework due to a need for leave to care for their son or daughter, under 18 years of age, because the child’s school[1] or place of care has been closed or the child care provider[2] of the child is unavailable, due to a public health emergency.[3]

Is EFMLEA leave paid or unpaid?  Both.  The first two weeks (typically 10 days) of leave are unpaid.  However, in most instances the EPSLA leave (for school and childcare closures) would cover the leave unless the employee’s EPSLA leave has been exhausted for some other reason.  If for some reason the EPSLA was not available, an employee could also elect to use other paid leave (like accrued PTO).  Alternatively, an employer can require that the employee use other paid leave during this period just as it can with other FMLA leave.

After the first two weeks, the EFMLEA offers paid leave for up to another 10 weeks.[4]  During this time, the employer must pay the employee two-thirds of the employee’s average rate of pay over the past six months.  This is subject to the statutory cap of $200 per day ($10,000 aggregate).  An employer may choose to pay more, but tax credits are limited to the amount required.

How does the EFMLEA calculate the number of paid hours?  If the employee has a regular schedule, the employee is entitled to the number of hours he or she would normally otherwise be scheduled to work, including overtime hours.

If the employee works variable hours, the calculation depends on how long the employee has been employed.

• If the employee has worked six or more months, the employee is entitled to the average number of hours he or she was scheduled per day over the six-month period preceding the date the he or she took leave.
• If the employee has worked less than six months, then the average number of hours per day the employee expected at the time of hiring is used.

Does an employee have any notice obligations under the EFMLEA?  If foreseeable, an employee must provide the employer with notice of leave as is practicable.

Does an employee need to provide a certification from a doctor for EMFLEA?  No.  When requesting  EFMLEA, an employee must provide his or her employer either orally or in writing with the following:

1. Name;
2. Date(s) of requested leave;
3. Reason for leave;
4. A statement that the employee is unable to work for the above reason;
5. The name of the employee’s child;
6. The name of the school, place of care, or child care provider that has closed or become unavailable; and
7. A statement that no other suitable person is available to care for the child.

Note: (1)-(4) are also required by the EPSLA for requesting paid sick leave.

Does an employer have to restore an employee to his or her previous position?  Yes, an employee is entitled to FMLA restoration of position unless all the following requirements are met:

• Employer employs fewer than 25 employees;
• Employee takes leave due under the EFMLEA;
• Position no longer exists due to economic or operating conditions that both affect employment and are caused by a public health emergency during the period of leave;
• Employer makes reasonable efforts to restore to an equivalent position; and
• If reasonable efforts fail, employer makes reasonable efforts to contact the employee if an equivalent position becomes available for one year after the earlier of (1) the need for leave ends or (2) 12 weeks after the date the leave commenced.

Is all FMLA leave now paid leave? No.  This only applies to EFMLEA.  The normal rules still apply for traditional FMLA leave.

EPSLA Overview

Who is eligible?  All employees.  However, health care providers or emergency responders are excluded.

What reasons are eligible for EPSLA paid sick leave?  There are six eligibility reasons:

1. Employee is subject to a quarantine or isolation order related to COVID-19.
2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. Employee is caring for an individual who falls under (1) or (2).
5. Employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider is unavailable, due to COVID-19 precautions.
6. Employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services.

How much leave do employees receive under the EPSLA?  Full-time employees receive 80 hours of leave.  Part-time employees will receive the average hours worked over a two-week period.

How much will an employee be paid while using EPSLA leave?  This depends on the reason for the employee’s leave.

For reasons (1)-(3) above, the employee will be paid the greater of regular pay rate or minimum wage.  This caps out at $511 per day ($5,110 aggregate).

For reasons (4)-(6), the employee is paid the greater of 2/3 of regular rate of pay or minimum wage.  This caps out at $200 per day ($2,000 aggregate).

What restrictions does the EPSLA place on employers?  Employers may not require an employee to search for or find a replacement employee to cover the paid sick time hours.  Employers may not require an employee to use other paid leave before using this paid sick time.  Employers may not discharge, discipline, or in any other manner discriminate against any employee who takes leave or files a complaint alleging a violation of this law.

This is just a broad overview of the FFCRA.  For more information, go to: https://www.dol.gov/agencies/whd/pandemic

Amy Beck is one of our Iowa attorneys, specializing in employment litigation and civil rights.

[1] A school means any elementary or secondary school.

[2] A child care provider is a provider who receives compensation for providing child care services on a regular basis.

[3] A public health emergency is defined by the law as an emergency with respect to COVID-19 declared by a federal, state, or local authority.

[4] This may be less if the employee has already exhausted FMLA leave for other qualifying reasons.