The Families First Coronavirus Response Act: Federal Employee Leave

The Families First Coronavirus Response Act: Federal Employee Leave

April 24, 2020
The Families First Coronavirus Response Act: Federal
Employee Leave
The Families First Coronavirus Response Act (FFCRA;
covered by that title, effectively excluding most federal
P.L. 116-127) established two types of Coronavirus Disease
civil service employees.
2019 (COVID-19) related leave for employees:
Federal Workers Covered by Title I of the FMLA
 Division C of the FFCRA, titled the Emergency Family
Not all federal employees are covered by Subchapter V of
and Medical Leave Expansion Act (EFMLEA),
Chapter 63 of Title 5. Definitions established under
amended the Family and Medical Leave Act (FMLA) to
Subchapter V provide that the term employee does not
make FMLA leave available to an employee unable to
include the following federal employees:
work or telework because a child’s school or place of
 individuals employed on a temporary or intermittent
care is closed or a childcare provider is unavailable for
basis;
COVID-19-related reasons. The first 10 days of this new
emergency FMLA leave may be unpaid leave, but an
 employees of the Government Accountability Office
employer must provide paid leave, up to a possible 10
and the Library of Congress;
weeks, for leave taken after 10 days.



part-time employees who do not have an established
Division E of the FFCRA, titled the Emergency Paid
regular tour of duty during the administrative
Sick Leave Act (EPSLA), requires employers to provide
workweek;
paid sick time to an employee unable to work or
telework for specified COVID-19-related reasons, such
 employees of either House of Congress or of the two
as being subject to a quarantine or isolation order.
Houses;
Although the paid sick time provided by the EPSLA is
 officers in the executive branch who are appointed by
available for most federal employees, emergency FMLA
the President and whose rate of basic pay exceeds the
leave is available only for certain federal employees. This
highest rate payable under Section 5332 of Title 5, U.S.
In Focus explores the differences in federal employee
Code;
coverage under the EFMLEA and the EPSLA, and
discusses how the EFMLEA’s amendment of the FMLA
 officers in the executive branch who are designated by
created coverage for only a subset of federal employees.
the President, except a postmaster, U.S. attorney, or U.S.
The FMLA and the EFMLEA
marshal;
As enacted in 1993, the FMLA provided an eligible
 chiefs of mission, as defined by the Foreign Service Act;
employee up to 12 workweeks of unpaid leave during any
12-month period for certain significant family and medical

purposes, like the birth or placement of the employee’s
officers in the legislative or judicial branch who are
child or the employee’s serious health condition.
appointed by the President;
For more
information on the FMLA, see CRS Report R44274, The
 Reserves of the Armed Forces who are not on active
Family and Medical Leave Act: An Overview of Title I.
duty or who are on active duty for training; and
EFMLEA Amended Only Title I of the FMLA
 employees of the U.S. Postal Service or the Postal
FMLA-protected leave is available to federal civil service
Regulatory Commission.
employees and other types of employees under separate
titles of the FMLA. While Title I of the FMLA applies
As federal employees who are not covered by Subchapter
generally to private sector employees and the employees of
V, these individuals would be considered eligible
state and local governments, Title II of the statute provides
employees under Title I of the FMLA if they satisfied the
family and medical leave to most federal employees. Title
statute’s other eligibility requirements. In general, to be an
II of the FMLA amended Chapter 63 of Title 5, U.S. Code,
eligible employee under Title I, an individual must work for
to add a new Subchapter V that provides an analogous
an employer with at least 50 employees within 75 miles of
family and medical leave benefit to most federal
the worksite, and have been employed for at least 12
employees. Notably, the term eligible employee is defined
in Title I to exclude “any Federal officer or employee
months with the employer from whom leave is requested,
and for at least 1,250 hours of service with this employer
covered under subchapter V of chapter 63 of Title 5[.]” By
during the previous 12-month period. The EFMLEA altered
amending only Title I of the FMLA, the EFMLEA provided
these requirements for emergency FMLA leave. For this
emergency FMLA leave only to those eligible employees
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The Families First Coronavirus Response Act: Federal Employee Leave
particular leave benefit, an individual must only be
The CAA definition of the term covered employee is
employed for the 30 calendar days before leave begins by
discussed in the previous section and covers most
the employer from whom leave is requested.
legislative branch employees.
Legislative branch employees receive family and medical
Finally, the EPSLA includes “any other individual
leave benefits through a different legislative structure than
occupying a position in the civil service” in its definition of
other federal employees. Legislative branch employees do
employee. Here, the statute references Section 2101(1) of
not receive such benefits under Subchapter V of Chapter 63
Title 5 to provide a definition for the term civil service.
of Title 5. Instead, the Congressional Accountability Act
Under that section, the term is defined to consist of “all
(CAA) of 1995 made Title I of the FMLA applicable to
appointive positions in the executive, judicial, and
employees covered by the act. The Office of Congressional
legislative branches of the Government of the United
Workplace Rights, which administers and enforces the
States, except positions in the uniformed services[.]”
CAA, has recognized that emergency FMLA leave is
available to such legislative branch employees.
While emergency FMLA leave may not be available for
most federal employees, paid sick time under the EPSLA
The CAA defines the term covered employee to mean any
must be provided for care related to a child’s school closure
employee of the House of Representatives, the Senate, the
or a childcare provider’s unavailability because of COVID-
Office of Congressional Accessibility Services, the Capitol
19. For more information on the EPSLA’s paid sick time
Police, the Congressional Budget Office, the Office of the
provisions and emergency FMLA leave, see CRS In Focus
Architect of the Capitol, the Office of the Attending
IF11487, The Families First Coronavirus Response Act
Physician, the Office of Congressional Workplace Rights,
Leave Provisions.
the Library of Congress, and the John C. Stennis Center for
Public Service Training and Development. The CAA
Potential Exclusions: CARES Act OMB
separately applied Title I of the FMLA to Government
Waivers, Exclusions for Certain Worker
Accountability Office (GAO) employees (who are not
Groups, and Agencies with Personnel
included among covered employees).
Flexibility
Federal Employees and the EPSLA
The CARES Act (P.L. 116-136) grants the Office of
Management and Budget Director authority to exclude from
Unlike the emergency FMLA leave provided by the
EFMLEA, the EPSLA’s paid sick time is available to most
the EFMLEA requirements “certain [federal] employers …
federal employees as a result of the statute’s
with respect to certain categories of Executive Branch
broad
employees.” The director may exclude from the EPSLA
definition for the term employee. The following individuals
requirements certain federal civil service employees,
are considered employees under the EPSLA:
including U.S. Postal Service and Postal Regulatory
 employees as defined in Section 3(e) of the Fair Labor
Commission employees. Consequently, the subsets of
Standards Act (FLSA);
federal employees with access to FFCRA leave (i.e.,
EFMLEA and EPSLA leave) may narrow if the director
 employees of the Government Accountability Office;
opts to exercise this authority.
 covered legislative branch employees, as defined in
The FFCRA also permits employers, including federal
Section 101 of the CAA, other than applicants for
employers, of health care providers and emergency
employment;
responders to exclude such employees from the emergency
FMLA leave or paid sick leave provisions. These terms,
 federal officers or employees covered under Subchapter
defined by U.S. Department of Labor regulations, are
V of Chapter 63 of Title 5, U.S. Code; and
discussed in CRS In Focus IF11487, The Families First
Coronavirus Response Act Leave Provisions.
 any other individuals occupying positions in the civil
service, as that term is defined by Section 2101(1) of
Finally, Congress has granted flexibility to certain federal
Title 5, U.S. Code.
agencies to establish the terms and conditions of
employment, including leave benefits, for their employees.
The EPSLA’s references to the FLSA, CAA, and Section
This flexibility could result in expanding or contracting
2101(1) of Title 5 suggest an effort to make paid sick time
federal employee access to the FFCRA leave entitlements.
available to most federal employees. For example, Section
For example, Section 7421 of Title 38, U.S. Code, permits
3(e) of the FLSA defines the term employee, to include the
the Secretary of the U.S. Department of Veterans Affairs to
following individuals: any civilian employee in a military
set the terms and conditions of employment for certain
department, any executive agency employee, any individual
Veterans Health Administration clinical staff without regard
employed in any unit of the judicial branch that has
to any law, regulation, or executive order. Accordingly, the
positions in the competitive service, any employee of a
Secretary could possibly decide not to apply the EFMLEA
nonappropriated fund instrumentality under the jurisdiction
or EPSLA provisions to these employees.
of the Armed Forces, any Library of Congress employee,
any Government Printing Office employee, and any
Sarah A. Donovan, Specialist in Labor Policy
individual employed by the U.S. Postal Service or the
Jon O. Shimabukuro, Legislative Attorney
Postal Regulatory Commission.
IF11519
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The Families First Coronavirus Response Act: Federal Employee Leave

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https://crsreports.congress.gov | IF11519 · VERSION 1 · NEW