FAQs: The FMLA Amendments and Paid Sick Leave Requirements under the Families First Coronavirus Response Act

Posted on Wednesday, April 1, 2020

President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020 in response to Covid-19 infecting Americans. Our attorneys weigh in on the most commonly asked questions regarding the Emergency Paid Sick Leave Act and the emergency Family and Medical Leave Expansion Act under FFCRA.

For Employers

A: The new leave provisions under the FFCRA take effect on April 1, 2020.
A: They apply to leave taken between April 1,2020 and December 31,2020. However, it is not likely that all six "leave reasons" will be applicable for that entire period.
A: Businesses that affect interstate commerce and employ less than 500 employees must comply with these new provisions. Under many circumstances, businesses with less than 25 employees are exempt.
A: Independent contractors under the Fair Labor Standards Act (FLSA) do not contribute to the 500-employee threshold.
A: You can take advantage of the small business exemption if you have less that 50 employees. In order to be considered, you should document why your business meets the criteria set by the Department of Labor. A
A: Yes. The FFCRA applies to all employees but not independent contractors or personnel provided through a temporary hiring agency. An employer is only responsible for the additional 10 weeks of paid expanded family and medical leave where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, if that employee has been an employee for at least thirty days.

For Employees

A: An employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
  • is subject to a Federal, State, or local COVID19 quarantine or isolation order COVID-19;
  • has been advised by a 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 subject to an order described in (1) or self-quarantine per (2);
  • is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  • is experiencing a substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
A: If you are taking paid sick leave due to being:
  • Subject to a Federal, State, or local quarantine/isolation order due to Covid-19
  • Advised by a health care provider to self-quarantine due to Covid-19
  • Symptomatic related to Covid-19 and seeking diagnoses.
You will receive the greater paying option of:
  • Your regular pay rate
  • The federal minimum wage that is in effect under FLSA
  • The applicable State or local minimum
A: Generally up to 80 hours or two work weeks. If you have been employed by the company for at least thirty days, you are entitled to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee's regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
A: For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period). For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period). For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period-two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).
A: 12 weeks. However, only the first two weeks will be considered paid leave unless you are caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
A: For the following ten weeks, you will be paid no less than 2/3 of your regular pay rate for your normally scheduled work hours.
A: For the first ten days of the expanded family and medical leave period, you may take paid sick leave under the FFCRA, or you may use accrued vacation time, personal leave, or medical sick leave that is granted under your employer's leave policy.
A: Your pay rate is calculated by the average or your regular rate over the six month period prior to your leave
A: Yes, but only for a maximum 12-week period and only if you are home with your child whose school or care service has been closed due to Covid-19 concerns.
A: FMLA is a 12-week period that is unpaid. The expanded family and medical leave under FFCRA provides a 2-week paid period under sick paid leave.
A: If your employer has permitted you to work from home, your work efforts should be compensated by your employer and not by the provisions made under FFCRA
A: If you are unable to perform your work duties because you are taking care of your child due to schools and child care services being closed due to Covid-19 concerns, you are eligible for leave.
A: No, but you may be eligible for unemployment insurance benefits.
A: No, but your employer may be subject to penalties for retaliation and you may be eligible for unemployment insurance benefits. You should contact your State workforce agency.
A: Yes, if your employer provides group health coverage that you are covered under, you are entitled to continued health insurance coverage during your leave.
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