Recent Developments Regarding The Families First Coronavirus Response Act

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Recent Developments Regarding 
The Families First Coronavirus Response Act

Beginning April 1, 2020, all private employers with fewer than 500 employees will be required to provide emergency family medical leave and emergency paid sick leave benefits pursuant to the Families First Coronavirus Response Act (FFCRA).  As discussed in Cox, Castle & Nicholson’s previous Client Alert, the FFCRA made significant changes to existing law by mandating that employers provide emergency paid sick leave to all employees, and expanding the scope of paid-leave benefits available under the Family Medical Leave Act (FMLA).    

While regulations implementing the FFCRA have not yet been issued (but are expected in April 2020), the U.S. Department of Labor (DOL) issued a model notice on March 25, 2020.  Employers are required to post the notice in a conspicuous place on their premises to inform employees of the benefits available to them.  However, because many have transitioned to remote work arrangements, employers may satisfy the posting requirement by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website.

Employers Subject to FFCRA

All private employers with fewer than 500 employees are subject to the FFCRA. Employers with fewer than 50 employees may apply for an exemption if providing the expanded benefits would jeopardize the viability of their business as a going concern.  Additional guidance concerning the exemption application process is expected when the DOL issues implementing regulations, expected next month.    

To determine if they fall under the 500-employee threshold, employers should include in their count all employees maintained on their payroll, all employees on any type of leave (FMLA, sick, PTO, etc.), temporary employees who are jointly employed by one or more employers (regardless of which employer maintains the payroll of these employees), and day laborers supplied by a temporary agency.

Generally, corporations (including separate establishments or divisions) are deemed separate employers unless they constitute a joint employer under the joint employer standard of the Fair Labor Standards Act with respect to certain employees, in which case each corporation must count the common employees. Separate entities will be considered a single employer if they meet the integrated employer standard under the FMLA. 

Emergency Paid Sick Leave

All full-time employees regardless of their tenure or length of employment are immediately entitled to up to two weeks (80 hours) of paid sick leave for any one of the following six reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to either (1) or (2).
  5. The employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  6. The employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Part-time employees are entitled to pro-rated leave, based on the number of hours the employee is normally scheduled to work. 

Emergency paid sick leave must be provided at the employee’s regular rate of pay, unless leave is taken for reason 4, 5 or 6 above, in which case it is to be paid at 2/3 the regular rate.  Sick leave pay is limited to $511 per day and $5,110 in the aggregate if leave is taken for reasons 1, 2 or 3 above, and $200 per day and $2,000 in the aggregate in the event that leave is taken for reason 4, 5 or 6.

Employers must provide this emergency paid sick leave over and above whatever benefits are available under the employer’s existing leave policies.

Emergency Family Medical Leave

Employees who have been employed for at least 30 days prior to their leave request are eligible for up to a total of 12 weeks of job-protected leave to care for a son or daughter (under 18 years of age) if the relevant school or place of care has been closed, or the relevant child care provider is unavailable, due to an emergency with respect to COVID–19 declared by a Federal, State, or local authority.  While the initial 10 days are unpaid, employees may use their two weeks of emergency paid sick leave, or any accrued vacation, personal, medical or sick leave under their employer’s policy during this period.  After the first ten days, employees are to be paid at 2/3 of their regular rate, subject to a limit of $200 per day and $10,000 in the aggregate.  

Note that the DOL model notice linked above contains an ambiguity.  An employee is entitled to receive up to $12,000 in the aggregate for job-protected leave – $2,000 for emergency sick leave and $10,000 for emergency family medical leave. 


Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA.

Temporary Grace Period for Enforcement

While employers are required to begin providing benefits pursuant to the FFCRA no later than April 1, 2020, the DOL announced in a Field Assistance Bulletin that it will not bring an enforcement action for any violation that occurs within 30 days of the FFCRA’s enactment (i.e. prior to April 17, 2020), “provided that the employer has made reasonable, good faith efforts to comply with the Act.”  Guidelines for establishing “reasonable, good faith efforts” are described further in the Field Assistance Bulletin. 

Duration of the FFCRA

The paid leave provisions of the FFCRA are effective through December 21, 2020. 

Additional Information and Resources

The DOL publishes additional guidance, fact sheets, Q&A’s, and bulletins on its COVID-19 and the American Workplace website.  While the fact sheets and Q&As do not at this time provide comprehensive or detailed answers to the many questions that have arisen, DOL has been updating its website on a regular basis and it is at present the best resource for up-to-date information on FFCRA benefits.    

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