Families First Coronavirus Response Act

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The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020 and includes two pieces of legislation –– the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).

FFCRA became effective April 1, 2020, and expires on December 31, 2020. Enforcement is through the U.S. Department of Labor's Wage and Hour Division (WHD).

To read the entire FFCRA see https://www.congress.gov/bill/116th-congress/house-bill/6201/text

COVERED EMPLOYER

All private sector employers with fewer than 500 employees in the U.S. are covered, including include nonprofit employers. All public agencies with at least one employee are covered.

The size of the workforce is measured when the employee’s leave is to be taken. The census includes full-time and part-time employees working within the U.S. (including the District of Columbia) and its territories and possessions. Employees on leave, joint employees (those employed by you and another employer) and day laborers supplied by a temporary agency should be counted.

QUALIFYING REASONS

An employee is entitled to take either emergency sick leave or emergency family leave if he or she is unable to work or telework because the worker:

• is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• has been advised by health-care provider to self-quarantine related to COVID-19;
• is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health-care provider to self-quarantine related to COVID-19;
• is caring for his or her child whose school or place of care is closed (or whose child care provider is unavailable) due to reasons related to COVID-19; or
• is experiencing another substantially similar condition specified by the U.S. Department of Health and Human Services.

FURLOUGH, LAYOFF, LACK OF WORK

The FFCRA does not apply to employees when no work is available. In other words, if there was no work for the employee even if he or she did not have to comply with isolation or quarantine orders, the FFCRA would not apply. Lack of work most commonly results from layoff, furlough or the shutdown of an entire business because of an isolation order.

SMALL BUSINESS EXEMPTION

By definition, small business have fewer than 50 employees. FFCRA requirements apply to all such companies, with certain exemptions. A small business owner may apply for an exemption if he or she determines that:

• Leave would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at even minimal capacity; or
• An employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because she or he has specialized skills, responsibilities or knowledge of the business; or
• Insufficient employees are able, willing and qualified at the time and place needed to perform labor or services provided by the employee, and such labor/services are needed to operate at minimal capacity.

EMPLOYEE EXCLUSIONS

The FFCRA excludes some employees from coverage. They are:

• Health-care Providers –– Anyone employed at a doctor’s office, hospital, health-care facility, clinic, post-secondary educational institution offering health-care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health provider, laboratory or medical testing facility, pharmacy or any similar institution, employer, or entity.
• Emergency Responders –– Anyone necessary to transport, care, comfort and provide nutrition for patients, or other services needed for the response to COVID-19, including provision of health care.

NEW YORK'S LEGAL CHALLENGE TO THE FFCRA AND WHAT TO EXPECT IN CALIFORNIA

New York state challenged several aspects of the FFCRA in federal court, and won, requiring New York employers to provide workers with even greater benefits under the law. Although the state's victory applies only to workers in New York, we expect California also to challenge the FFCRA law, potentially requiring California employers to provide expanded benefits to workers as well. Here's a summary of the expanded benefits New York businesses must provide to their workers under the FFCRA:

• Availability of work is irrelevant to FFCRA eligibility. The previous FFCRA rule required that work be available to employees during the times they needed leave. It prevented employees who were not on the schedule or had been furloughed from taking advantage of FFCRA paid leave. The federal court ruled that if a worker is still employed, whether on the schedule or not, she or he should be allowed to use FFCRA leave. Presumably, this means that laid-off employees remain ineligible for FFCRA leave, as a layoff implies a permanent separation of the employment relationship. A furlough, in contrast, does not sever the employment relationship.
• Employees may take intermittent leave even if their employers don't agree. The previous FFCRA rule allowed workers to take intermittent leave only if their employers approved. The New York federal court disagreed, and ruled that an employer must allow leave if an employee needs intermittent leave or partial days or weeks off to care for a child whose school or child care center is unavailable because of COVID-19.
• Documentation is not required prior to taking leave. The FFCRA allowed employers to require certain documentation before a worker could take leave. The New York court ruled that such documentation is not required before leave is taken –– the employee must be allowed to start leave and to provide the documentation as he or she is able.
• The definition of health-care provider, for the purpose of being exempt from leave, is narrowed. In the regulations interpreting the FFCRA, the DOL defined the term "health-care provider" broadly. It included anyone who works for a health-care entity, as well as many who contract with one. The New York court ruled that the definition was too broad, but didn't provide a new definition. The court criticized the definition as relying entirely on the identity of the employer. Although a narrow definition wasn't adopted, we remind employers that the reason health-care providers were exempt from the FFCRA paid leave requirements was to ensure that there is a sufficient number of such workers to handle coronavirus cases and their complications.

Although these rule changes are not applicable to California businesses, the state's employers should be aware of trends in the law and the likelihood that such changes also will be imposed here, especially if the number of coronavirus cases continues to grow and impact our workplaces. Should California adopt these, or other rule changes, we will update this section accordingly.

SEE ALSO

• FAQs — Families First Coronavirus Response Act
• How Families First Coronavirus Response Act Interacts with Family and Medical Leave Act & California Family Rights Act

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