Families First Coronavirus Response Act: What Employers Need to Know
In the wake of the coronavirus pandemic, the U.S. House of Representatives has passed the Families First Coronavirus Response Act (“FFCRA”) (H.R. 6201)—a bill which broadens the Family Medical Leave Act (“FMLA”) and creates an emergency paid leave program in direct response to the coronavirus.
Here’s what employers need to know:
An employee’s entitlement to sick leave is typically governed by the FMLA. Under the FMLA, “covered employers”—i.e., employers that employ fifty or more employees—are required to provide “covered employees” with twelve weeks of unpaid leave for each one-year period of employment. To qualify as a “covered employee,” an employee must, among other things, have worked for a covered employer for at least one year and, during that year, must have performed 1,250 of service for the employer.
If enacted, however, the FFCRA would enlarge the FMLA’s coverage provisions. As an initial matter, the FFCRA would apply to all employers that employ fewer than 500 employees. Moreover, under the FFCRA, employees will be entitled to twelve weeks of leave so long have they have been employed for thirty calendar days. And perhaps most significantly, the FFCRA requires employers to pay employees a minimum of two-thirds of their regular rate for at least ten of the twelve week leave period.
The upshot? Thousands smaller businesses and employers will be required to offer their employees paid leave if such leave is necessary for one of the following coronavirus-specific reasons:
- To comply with a recommendation or order by a health authority or a health care provider that the physical presence of the employee on the job would jeopardize the health of others because of the (a) exposure of the employee to coronavirus, or (b) exhibition of symptoms of Coronavirus/COVID-19 by the employee, and the employee is unable to both perform the functions of the job and comply with the recommendation or order.
- To care for a family member of an eligible employee, where a health authority or a healthcare provider makes a determination that the presence of the family member in the community would jeopardize the health of others in the community because of the (a) exposure of the family member to Coronavirus/COVID-19 or (b) exhibition of symptoms of Coronavirus/COVID-19 by the family member.
- To care for a child of the employee who is under 18 years old if the elementary or secondary school or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.
Further, under the FFCRA, covered employers (i.e., those with fewer than 500 employees) will be required to provide employees with up to 80 hours of paid sick time for use under the following circumstances:
- To self-isolate because the employee is diagnosed with Coronavirus/COVID-19.
- To obtain a medical diagnosis or care if such employee is experiencing the symptoms of Coronavirus/COVID-19.
- To comply with a recommendation or order by a public official with jurisdiction or a healthcare provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of:
(A) the exposure of the employee to Coronavirus/COVID-19; or
(B) exhibition of symptoms of Coronavirus/COVID-19 by the employee.
- To care for or assist a family member of the employee:
(A) who:
(i) is self-isolating because such family member has been diagnosed with coronavirus; or
(ii) is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.
(B) with respect to whom a public official with jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of:
(i) the exposure of such family member to the coronavirus; or
(ii) exhibition of symptoms of coronavirus by such family member.
- To care for the child of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.
For now, H.R. 6201 is only a bill, but the U.S. Senate is positioned to pass it into law any day now. Kerrick Bachert will update this post as new information is made available.