Question: Do I have to pay my employees for time off under the new Families First Coronavirus Response Act?

Answer: The Families First Coronavirus Response Act (FFCRA) was signed March 18, 2020 and is effective April 1.  As of March 31, the Department of Labor (DOL) has not issued regulations, but it has issued guidance for employers, available at https://www.dol.gov/agencies/whd/pandemic.

The FFCRA provides that employees of “covered employers” are eligible for:

  • Emergency paid sick leave (“EPSL”) (available to all employees regardless of how long they have worked for the employer):
    • Two weeks (up to 80 hours) at the employee’s regular rate of pay if he/she cannot work because he/she is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis;
    • Two weeks (up to 80 hours) at two-thirds the employee’s regular rate of pay because the employee cannot work because of a bona fide need to care for an individual (not necessarily a family member) subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or must care for a child (under 18) whose school/childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Paid Expanded Family and Medical Leave (“Expanded FMLA”):
    • Up to an additional 10 weeks at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, cannot work due to a bona fide need for leave to care for a child whose school/childcare provider is closed or unavailable for reasons related to COVID-19.

The FFCRA applies to private employers with fewer than 500 employees and public employers with 1 or more employees. The employer must look at the number of employees it has at the time of the request for the leave.

According to the DOL, if an employer closes a worksite before April 1, employees are not eligible for EPSL or Expanded FMLA, “whether your employer closes your worksite for lack of business or because it is required to close pursuant to a federal, state or local directive.” If an employer closes the business while someone is on EPSL or Expanded FMLA, it must only pay for any of that leave used before it closed.

If an employer reduces an individual’s hours or furloughs the worker due to a lack of work, the person is not entitled to EPSL or Expanded FMLA. According to the DOL, “This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.”  By contrast, an individual may take EPSL or Expanded FMLA if a Coronavirus-qualifying reason prevents him/her from working a full schedule. In all these circumstances the employee may be eligible for unemployment insurance benefits.

If your business is open and your employee would be working but must stay home to care for a child whose school/childcare provider is closed, that employee will be eligible for EPSL and may also be eligible for Expanded FMLA.

Employers that provide FFCRA required EPSL and/or Expanded FMLA are eligible for reimbursement of the costs of that leave through refundable tax credits.  Examples of the credits are included in the guidance at  https://www.dol.gov/newsroom/releases/osec/osec20200320.