The Families First Coronavirus Response Act Leave Provisions

The Families First Coronavirus Response Act Leave Provisions

April 2, 2020
The Families First Coronavirus Response Act Leave Provisions
This In Focus examines the Families First Coronavirus
leave provisions in Subchapter V, Chapter 63, U.S. Code.
Response Act (FFCRA; P.L. 116-127) leave provisions, as
The Office of Management and Budget (OMB) Director
amended by the CARES Act (P.L. 116-136), and
may exclude for good cause from the emergency FMLA
regulations published by the Department of Labor (DOL)
leave requirements certain federal employers for certain
on April 1, 2020.
categories of executive branch employees.
The FFCRA created two new and temporary leave benefits
Provision of Paid Leave
for eligible employees: (1) emergency Family and Medical
In general, FMLA leave is unpaid. For emergency FMLA
Leave Act (FMLA) leave to care for the employee’s minor
leave, the first 10 days may be unpaid, although the
child whose school or place of care is closed, or whose care
employee may elect to use other paid leave during that
provider is unavailable due to the Coronavirus Disease
period. Covered employers must compensate employees for
2019 (COVID-19) public health emergency (such leave is
the remainder of emergency FMLA leave at two-thirds of
paid leave after an initial 10 days of unpaid leave), and (2)
their regular rate of pay. Such paid leave is capped at $200
paid sick leave for certain COVID-19 related needs. The
per day per employee up to $10,000 total per employee.
FFCRA included tax credit provisions to help employers
Job Protection
(including the self-employed) cover costs related to paid
FMLA leave is generally job-protected. That is, upon return
leave. Both paid leave benefits took effect on April 1, 2020,
from leave, with some exceptions, an employee must be
and apply to leave between April 1, 2020 and December 31,
reinstated to the job held before taking FMLA leave. This
2020.
requirement does not apply to employers with fewer than
Division C—The Emergency Family and
25 employees if the employee used emergency FMLA leave
Medical Leave Expansion Act
and certain conditions are met.
The Emergency Family and Medical Leave Expansion Act
Division E—The Emergency Paid Sick
(FFCRA, Division C) amended the FMLA to allow eligible
Leave Act
employees of covered employers to use up to 12
The Emergency Paid Sick Leave Act (FFCRA, Division E)
workweeks of FMLA-protected leave to care for the
requires covered employers to provide paid sick leave to an
employee’s minor child whose school or care provider is
employee who is unable to work (including telework) and
unavailable due to a COVID-19 public health emergency
(1) is subject to a federal, state, or local quarantine or
(i.e., emergency FMLA leave). Further discussion of the
isolation order related to COVID-19; (2) has been advised
FMLA is in CRS Report R44274, The Family and Medical
by a health care provider to self-quarantine due to concerns
Leave Act: An Overview of Title I, by Sarah A. Donovan.
related to COVID-19; (3) is experiencing symptoms of
Employee Eligibility and Employer Coverage
COVID-19 and is seeking medical diagnosis; (4) is caring
Unlike standard FMLA employee eligibility
for an individual who is subject to a federal, state, or local
requirements—at least one year and 1,250 hours (in the last
quarantine or isolation order related to COVID-19 or an
year) of employment with the current employer having at
individual who has been advised by a health care provider
least 50 employees within 75 miles of the worksite—
to self-quarantine due to concerns related to COVID-19; (5)
employees who have been with their current employer for
is caring for a child whose school or place of care is closed,
at least 30 calendar days and work for a covered employer
or whose child care provider is unavailable, due to COVID-
may use emergency FMLA leave. DOL regulations provide
19 related reasons; or (6) is experiencing any other
that employees meet this condition if they were on the
substantially similar condition, as specified by the Secretary
employer’s payroll for the 30 calendar days just before the
of Health and Human Services.
day leave begins. Rehired employees may qualify for leave
Provision of Paid Leave
if they were laid off not earlier than March 1, 2020, worked
Full-time employees are entitled to 80 hours of paid sick
for the employer for at least 30 of the 60 calendar days
leave, and part-time employees must be provided the
before the layoff, and were rehired by the same employer.
equivalent of two weeks of leave. DOL regulations provide
For emergency FMLA leave purposes, covered employers
that part-time employees are those employed for fewer than
are private-sector employers employing fewer than 500
40 hours per week. For leave taken for the employee’s
employees and certain public agencies, including state and
quarantine, self-isolation, or medical diagnosis, sick leave is
local governments. For federal employee coverage,
compensated at the greater of the employee’s regular rate of
emergency FMLA leave is available to legislative branch
pay, the federal minimum wage, or the minimum wage rate
employees covered by the Congressional Accountability
in the applicable state or locality of employment. However,
Act of 1995, Government Accountability Office employees,
paid leave provided for these purposes is capped at $511
Library of Congress employees, and other federal
per day and $5,110 total per employee. For caregiving and
employees who are not covered by the family and medical
other needs, the employer must compensate the employee at
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The Families First Coronavirus Response Act Leave Provisions
two-thirds of the previously described amounts, and such
examples of emergency responders. DOL allows the highest
paid leave is capped at $200 per day and $2,000 total per
official of a state or territory, including the District of
employee.
Columbia, to expand the term as needed.
Employee Eligibility and Employer Coverage
Definition of Health Care Provider
Like Division C’s new FMLA provisions, Division E’s paid
The FMLA defines a health care provider to include a
sick leave provisions apply broadly to private-sector
state-licensed doctor of medicine or osteopathy or any other
employers with fewer than 500 employees and to public-
person determined by the Secretary of Labor to be capable
sector employees. The OMB Director may exclude for good
of providing health care services. DOL regulations require
cause certain federal civil service employees from the paid
that health care providers must be authorized to diagnose
sick leave requirements, including by exempting certain
and treat physical or mental health conditions. For purposes
executive branch employers, the U.S. Postal Service, and
of excluding certain health care providers from the
the Postal Regulatory Commission. However, unlike the
application of the FFCRA’s leave provisions, however,
emergency FMLA provisions, employees of covered
DOL regulations employ a broader definition that includes,
employers are eligible regardless of the length of their
for example, anyone employed at any doctor’s office.
employment.
Closures and Furloughs
Small Business Exemption
Emergency FMLA leave and paid sick leave are available
The FFCRA authorized the Secretary of Labor to exempt
only for an individual who may be classified as an
businesses with fewer than 50 employees from providing
employee under Divisions C and E of the FFCRA. The
emergency FMLA leave or paid sick leave due to school or
FFCRA incorporates the Fair Labor Standards Act’s
place of care closures or child care provider unavailability
(FLSA) definition of “employee,” which is generally
for COVID-19 related reasons if such leave “would
limited to individuals who are “suffer[ed] or permit[ed] to
jeopardize the viability of the business as a going concern.”
work” by an employer. Applying this definition, it would
appear that an individual who works for an employer that
DOL regulations provide that these small businesses are
closes its worksite or implements a furlough would no
exempt from providing emergency FMLA leave or paid
longer be permitted to work, and would likely not be an
sick leave if an authorized officer of the business has
“employee” under the FFCRA. Although emergency
determined that (1) providing leave would make the small
business’s expenses and financial obligations
FMLA leave and paid sick leave would not be available,
exceed
such an individual may be eligible for unemployment
available business revenues and cause the small business to
benefits. Independent contractors are generally not
cease operating at a minimal capacity; (2) the absence of
considered “employees” for FLSA purposes. Thus,
the employee requesting leave would entail a substantial
independent contractors are not entitled to emergency
risk to the financial health or operational capabilities of the
FMLA leave or paid sick leave from the entity that retains
small business because of the employee’s specialized skills,
them.
knowledge of the business, or responsibilities; or (3) there
are not sufficient workers who are able, willing, and
Enforcement
qualified, and who will be available at the time and place
In general, enforcement of the FFCRA’s emergency FMLA
needed, to perform the labor or services provided by the
leave provisions will occur under Section 107 of the
employee on leave, and these labor or services are needed
FMLA. This section permits employees to file civil actions
for the small business to operate at a minimal capacity.
against their employers for interfering with FMLA rights.
Businesses must document such determinations, but are not
However, for emergency FMLA leave, the FFCRA
required to submit materials to DOL to receive the
established a special rule for employers with fewer than 50
exemption.
employees. An employee of such an employer may not file
Employers of Health Care Providers and
a civil claim to enforce his or her right to emergency FMLA
Emergency Responders
leave. The Secretary of Labor may exercise his existing
authority to seek injunctive and equitable relief for such an
Employers of health care providers and emergency
employee.
responders may exclude such employees from emergency
FMLA leave or paid sick leave provisions. In addition, the
Enforcement of the FFCRA’s paid sick leave provisions
Secretary of Labor may issue regulations that exclude such
will occur in accordance with Sections 16 and 17 of the
groups of workers from the leave provisions.
FLSA. These sections provide employees with a right to file
Definition of Emergency Responder
civil actions against employers for unpaid wages, as well as
the ability for the Secretary of Labor to seek injunctive
The term emergency responder is not defined in the
relief and recover unpaid wages. Division E of the FFCRA
FFCRA. For purposes of the FFCRA’s leave provisions,
did not establish a special rule for employers with fewer
DOL regulations define the term to include “anyone
than 50 employees.
necessary for the provision of transport, care, healthcare,
comfort and nutrition of ... patients, or others needed for the
response to COVID-19.” The agency has identified law
Sarah A. Donovan, Specialist in Labor Policy
enforcement officers, correctional institution personnel, fire
Jon O. Shimabukuro, Legislative Attorney
fighters, medical professionals and technicians, and
IF11487
emergency management and public works personnel as
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The Families First Coronavirus Response Act Leave Provisions

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