Digging deeper into the Families First Act: FAQ for employers

UPDATED MARCH 25, 2020 12:05 P.M. (CDT)

Along with funding for health services and testing and expanded access to food benefits like SNAP and WIC, the sweeping Families First Coronavirus Response Act includes paid family and sick leave entitlements for employees who are out of work for reasons related to COVID-19.

The paid leave portions of the Act comprise two different laws: the Emergency Family and Medical Leave Expansion Act of 2020, which grants up to 12 weeks of leave to care for a child (referred to as “emergency family and medical leave”), and the Emergency Paid Sick Leave Act, which grants up to 80 hours of leave for COVID-19 related reasons (referred to as “emergency paid sick leave”).

NEW: Department of Labor issues official FAQ on Families First Coronavirus Response Act

The highlights of the paid leave portions of the Act can be found here. Below we’ve provided answers to some of the frequently asked questions regarding the new Act:

Question: When does the Act go into effect?

Answer: April 1, 2020.

Question:When should employers start complying with the Act?

Answer: When it becomes effective. Benefits provided prior to this date, even if consistent with the Act, do not count towards the new requirements and presumably are not eligible for the tax credits allowed under the Act.

Question: Which companies are covered by the Act?

Answer: Both the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act apply to all private employers with fewer than 500 employees and all public employers with more than 1 employee. Employers of healthcare providers and/or emergency responders, however, may elect to exclude their employees.

Question: How is the number of employees calculated?

Answer: A company has fewer than 500 employees if, at the time an employee’s leave is to be taken, the company employs fewer than 500 full-time and part-time employees within the United States. The employee count includes employees on leave and temporary employees who are jointly employed by the company and another employer, but it does not include individuals who are considered independent contractors under the FLSA. The existing rules for calculating employees under the Family and Medical Leave Act (FMLA) apply.

Interrelated but legally separate companies are separate employers unless they meet the “joint employment” test under the FLSA and the “integrated employer test” under the FMLA.

Question: What if a company has 500 or more employees?

Answer: The Act does not apply. These employers should follow their existing sick leave policies. Some large companies, including Walmart and Darden Restaurants, have announced they will voluntarily provide paid sick leave.

Question: Which employees are covered by the Act?

Answer: The Emergency Paid Sick Leave Act covers all employees of a covered employer (with the caveat that healthcare providers and emergency responders may be excluded). The Emergency Family and Medical Leave Act covers all employees who have been employed for at least 30 calendar days by the employer (again, with the caveat that that healthcare providers and emergency responders may be excluded).

Question: How much paid leave must employees be granted?

Answer: It depends. Eligible employees who work full-time may use up to 80 hours of emergency paid sick leave for qualifying reasons and 10 additional weeks of emergency family and medical leave if they have a child whose school or childcare facility is closed due to COVID-19.

The amount of paid sick leave an employer must grant to eligible employees who work part-time depends on how many hours the employee works, on average, over a 2-week period. For example, if the employee typically works 15 hours per week, then the employee can receive up to 30 hours of emergency paid sick leave for qualifying reasons. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. All eligible part-time employees must also be granted 10 additional weeks of emergency family and medical leave if they have a child whose school or childcare facility is closed due to COVID-19.

Question: Under what circumstances may an employee take emergency paid sick leave or emergency family and medical leave?

Answer: There are at least two important things to note here. First, the “qualifying reasons” for which an employee may use emergency paid sick leave vary substantially from the qualifying reason for which an employee may use emergency family and medical leave. Second, these portions of the Act changed significantly as it progressed through Congress, so it is important to verify that any resources you rely upon are up-to-date and addressing the law as it was enacted.

Under the final version of the Act signed into law, employees may use up to 2 weeks of emergency paid sick leave when they cannot work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine/isolation order;

2. The employee has been advised by a healthcare provider to self-quarantine due to COVID-19-related concerns;

3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;

4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);

5. The employee is caring for a son or daughter because their school or place of care has been closed, or their child care provider is unavailable, due to COVID-19 precautions; or

6. For other substantially similar conditions that may be later specified by the Secretary of Health and Human Services.

Employees may only use the 12 weeks of emergency family and medical leave when they cannot work (or telework) because they need to care for their son or daughter under 18 years of age whose school or place of care has been closed, or whose child care provider is unavailable, due to COVID-19.

Question: How much is an employee paid when using the 2-week emergency paid sick leave?

Answer: If an employee uses emergency paid sick leave for reasons 1, 2, or 3 above, then the employer must pay the employee their full earnings, with a cap of $511 per day ($5,110 total). If the employee uses emergency paid sick leave for reasons 4, 5, or 6, then the employee must be paid in an amount not less than two-thirds of the employee’s earnings, with a cap of $200 per day ($2,000 total).

Question: How much is an employee paid when using the 12-week emergency family and medical leave?

Answer: The first 10 days of this leave may be unpaid, but employees may substitute any accrued paid leave, such as vacation time, or the 2 weeks of emergency paid sick leave during this time. The remainder of leave beyond the 10-day period must be paid by the employer in an amount not less than two-thirds of an employee’s regular earnings (including overtime), however, employers are not required to pay an employee more than $200 per day ($10,000 total).

Question: Can employees take the leave intermittently?

Answer: The final version of the Act does not address this question. The original version of the bill permitted intermittent use of the emergency family and medical leave and prohibited intermittent use of the emergency paid sick leave. Both of those provisions were removed from the final version without explanation. The Department of Labor (DOL) may enact rules and regulations that answer this question.

Question: Can an employee receive emergency paid sick leave in addition to paid sick leave provided to the employee by company policy or in accordance with state or local law?

Answer: Yes. The Act specifically says that it does not diminish any rights an employee is entitled to under any other Federal, State, or local law or under an existing company policy, though presumably an employee would not be entitled to “double dip” or receive a windfall of pay that is more than that to which the employee would be entitled if actually working.

Question: Do employees get 12 weeks of emergency family and medical leave in addition to the 12 weeks already provided by the FMLA?

Answer: The answer is not clear, and we hope it will be addressed by the DOL in the guidelines it is supposed to release by April 2, 2020.

Question: Is an employee entitled to reinstatement after returning from emergency family and medical leave?

Answer: Typically, yes. There is one exception written into the Act, and it is only for employers with fewer than 25 employees. The exception applies only if, at the time reinstatement is requested, (1) the employee’s job no longer exists, (2) due to economic conditions or changes in operating conditions caused by COVID-19, and (3) the employer makes reasonable efforts to restore the employee to an equivalent position but is unable to do so. Even if the exception applies, the employer must continue to make reasonable efforts to contact the employee if an equivalent position becomes available for a 1-year period. The 1-year period starts on the date the employee’s leave ended or 12 weeks after the date the employee’s leave commenced, whichever comes first.

Question: Who covers the cost of the paid leave?

Answer: Initially, the employer. However, the employer can recoup these costs from the Federal government by taking tax credits against the employer’s portion of Social Security taxes. If the amount the employer has spent on leave exceeds its Social Security tax burden, it will qualify for other tax credits.

Question: Are there any notice requirements under the Act for employer?

Answer: Yes. Employers are required to post and keep posted, in visible places on-site where notices to employees are usually posted, a notice of employees’ rights to emergency paid sick leave. The model notice published by the DOL can be found here. Employers are also required to give employees notice at the time of separation of the availability of unemployment benefits. With a large portion of the workforce working from home, companies should take reasonable steps to provide these notices to employees electronically.

Question: Are there any notice requirements under the Act for employees and can an employer require an employee to provide medical documentation?

Answer: After the first workday that an employee begins receiving emergency paid sick leave benefits, an employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time, but the Act does not address what specific documentation an employer may request. As for emergency family and medical leave, the Act requires employees to provide notice to their employer as is practicable when necessity for the leave is foreseeable. The Act does not address whether the employer can request documentation, but it’s probably a non-issue because that leave is only available when an employee is unable to work due to a school closure; the employer will usually be able to verify this information without requesting any documentation from the employee.

Question: Can an employer require employees to find someone to cover their shift before allowing them to take paid sick leave?

Answer: No. The Act specifically prohibits an employer from requiring, as a condition of providing emergency paid sick time, that the employee search for or find a replacement employee to cover their hours.

Question: Can an employer require employees to use their paid time off before they can use the emergency paid sick leave?

Answer: No. The Act prohibits an employer from requiring its employees to use other paid leave before the employee uses the emergency paid sick leave. An employee may elect to do so, however.

Question: Are there any exemptions to the paid leave requirements for small businesses?

Answer: Yes, for employers with fewer than 50 employees if providing the leave would jeopardize the viability of the business as a going concern.To elect this small business exemption, employers should document why the business meets the criteria, which will be addressed in more detail in forthcoming regulations.

Question: Who qualifies as a healthcare provider?

Answer: The Act incorporates defined terms from the FMLA. “Healthcare provider” – which is the individual who can certify an employee as having a “serious health condition” for purposes of FMLA leave – is narrowly defined under the FMLA as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices or any other person determined by the Secretary of Labor to be capable of providing healthcare services, which currently includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, Christian Science Practitioners, and any healthcare provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits. It is unclear whether the Secretary of Labor will expand this definition pursuant to the rule-making authority granted under the Act. Presumably the Secretary will do so as to include, at a minimum, those direct care providers who are combatting COVID-19 such as nurses, techs, aides and the like.

Question: Who qualifies as an emergency responder?

Answer: The Act does not define emergency responder. As states order local businesses to close their doors to prevent the spread of COVID-19, at least two states (Vermont and Minnesota) have taken the position that grocery store employees are “emergency workers.” Again, this is a question that will likely be addressed by the DOL’s guidelines.

Question: If an employee is laid off or furloughed due to COVID-19, are they eligible for unemployment benefits?

Answer: Most likely. While states control unemployment benefits, the Act allots extra money to states for unemployment and requires states to “ease” eligibility requirements for unemployment benefits so that an employee who has been furloughed, laid off, or exhausted their paid leave allotment may apply for unemployment benefits. The Act also extends unemployment benefits beyond a state’s normal benefits period for those who become unemployed for a COVID-19 related reason. You should check with your state’s unemployment division for specifics on how your state is handling this.

Question: If our company decides to furlough employees, could it be responsible for providing paid leave to them under the new Act?

Answer: It is unclear. The Act does not exclude furloughed employees from its definition of “employee,” and furloughed employees are typically still considered employees of the company. On the other hand, an employee’s entitlement to paid family and medical leave under the Act is triggered when the “employee is unable to work (or telework) due to a need for leave to care for a child whose school has been closed.” Similarly, an employee becomes eligible for emergency paid sick leave when the employee is unable to work due to one of the listed COVID-19 related reasons. Employees who are furloughed are – arguably – unable to work due to economic conditions affecting the company, irrespective of whether the employees are also dealing with school closures and other COVID-19 related issues.

If furloughed employees are covered by the Act, then you’re probably wondering how much the company must pay furloughed employees while they’re on leave. The answer to that question is also unclear under the Act. Both the emergency paid sick leave and emergency family and medical leave portions of the Act calculate the amount of compensation owed to an employee on the employee’s regular rate of pay and the “number of hours the employee would otherwise be normally scheduled to work.” It’s unclear whether employers should be looking backward at an employee’s average work schedule, and if so, how far backward or if employers should base the calculation on the number of hours an employee would have been scheduled to work had the employee not requested leave (which could potentially be zero if the employee is furloughed). It is hoped that the DOL will address these gaps in its guidelines. Stay tuned for updates.

Question: What if an employer decides to cut hours instead of laying off employees?

Answer: The Act encourages state unemployment offices to allow employees whose hours have been cut to collect unemployment benefits to offset lost wages. You should check with your state’s unemployment division for specifics on how your state is handling this.

Question: If an employer, as a precaution, sends home an employee who is not showing any COVID-19 symptoms, would that trigger any paid leave requirements under the Act?

Answer: No. The qualifying reasons for which an employee may request paid leave can be found here.

Question: How long will these new measures be in effect?

Answer: The requirements of the Act are set to expire on December 31, 2020. Any “unused” paid sick leave will not carryover to 2021.

Question: Is Congress considering any additional legislation?

Answer: Yes. Both the House and Senate are working on additional legislation to provide additional benefits to business and individuals, including possible business loans, payroll tax cuts, tax credits, expanded unemployment insurance benefits, aid to the airline industry, anti-price gouging measures, and direct payments to individuals. Stay tuned for updates.

The Department of Labor has published several documents to assist employers and employees with respect to their responsibilities and rights under the Families First Coronavirus Response Act, including:

• FFCRA: Questions and Answers
• FFCRA: Employer Paid Leave Requirements
• FFCRA: Employee Paid Leave Rights
• Field Assistance Bulletin No. 2020-1
• Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act
• Families First Coronavirus Response Act Notice – Frequently Asked Questions