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 Dec. 31, 2020. Enforcement is through the U.S. Department of Labor's Wage and Hour Division (WHD).

To read the entire FFCRA, link here.

UPDATE: Mandated FFCRA Not Extended Past Dec. 31, 2020

On Dec. 21, 2020, Congress passed the Continuing Appropriations Act (Act). It does not extend the mandatory FFCRA paid leave past the original sunset date of Dec. 31, 2020.

It's important to know that employers who voluntarily provide FFCRA leave past Dec. 31 may utilize the FFCRA tax credit until March 31, 2021. Congress did not expand the amount of leave available, and the act prohibits employers from claiming tax credit in 2021 for employees who exhausted all of their FFCRA leave in 2020. But if an employer voluntarily provides FFCRA leave to employees who did not exhaust their leave in 2020, tax credits are available through Sept. 30, 2021. Originally, the extension of tax credits available to employers who voluntarily provided FFCRA leave after the expiration of the mandate was March 31, 2021. The ability to take the tax credit was extended again for employers with fewer than 500 employees who voluntarily provided FFCRA leave through the American Rescue Plan Act signed into law March 11, 2021. See the section below, American Rescue Plan Act of 2021, for more information.

California has not adopted its own version of the FFCRA. If an employee was on FFCRA leave Dec. 31, 2020, employers are not required to allow him or her to continue past that date.

Employers should continue to provide all federal, state and local leave to employees affected by COVID-19. Employers should evaluate whether affected employees are entitled to leave under the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) to care for their own serious health condition or that of a family member. Employers should follow their own policies when administering FMLA/CFRA.

California sick leave under Labor Code § 246 is available to sick employees and those who must care for a sick family member.

Finally, employers should ensure that their employees are aware of and offered the opportunity to utilize the employer's vacation, sick or PTO policies.

We will update this section if Congress, the California governor or legislature extends FFCRA leave.

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 Families First Coronavirus Response Act 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.

Department of Labor Revises Families First Coronavirus Response Act Rules Following New York's Legal Challenge

The U.S. Department of Labor (DOL) revised regulations concerning paid leave under the FFCRA. The revisions can be found here. They were effective Sept. 16, 2020, as a response to the federal court decision in New York invalidating various aspects of the original regulations. See the analysis in the subsection above of the New York decision anticipating the DOL changes to the FFCRA. The new rule makes these key changes:

The FFCRA is available only when work is available.

The new rule affirms that the FFCRA is available to employees only if work would otherwise be available to them. The leave remains unavailable if an employee has been furloughed or the employer's business has closed, because, in those circumstances, the employee has no work from which to take leave. The DOL stresses that an employer may not make work unavailable in order to avoid leave — the employer must have a legitimate, nonretaliatory reason why it does not have work for the employee to perform.

Intermittent leave is available with employer approval.

The DOL confirmed that an employee may take intermittent leave only with an employer's permission, and clarified the difference between intermittent leave and consecutive requests for leave. The department said intermittent leave and employer approval wouldn't apply when an employee takes FFCRA leave in full-day increments to care for a child whose school is operating on an alternate day (or other hybrid attendance system) because such leave would not be intermittent. Each day the school is closed creates a separate reason for FFCRA leave that ends when the school opens again for that student.

The definition of "health-care provider" is narrower.

The DOL amended its definition of health-care provider in the context of the FFCRA provision allowing employers to exclude health-care providers from some or all forms of FFCRA leave. As originally defined, "health-care provider" was very broad and focused on the types of employers that could exercise the exemption. As of September, the DOL narrowed the scope to focus on the work performed by certain employees, not the services provided by their employer. Whether an employee properly may be deemed exempt as a "health-care provider" will depend on whether he or she provides "health-care services" under the regulations. Specifically, the new regulations state that health-care providers are:

1. physicians and others who make medical diagnoses; and
2. any other employee who is capable of providing health services.

No. 2 means that they are employed to provide diagnostic and/or preventive services, treatment or other services that are integrated with and necessary to the provision of patient care that would adversely be impacted if they were not provided. The regulations are clear that employees who do not provide health-care services do not qualify. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers are not considered health-care providers even if their work is performed in a hospital, clinic or other facility that provides health care.

Notice and documentation requirements have been revised.

The DOL amended the FFCRA notification and documentation requirements to reflect that:

• Employees need not furnish documentation concerning the need for leave before taking it, but they must provide the documentation as soon as practicable.
• Employers may require employees who take emergency paid leave to provide notice only after the first work day, or portion of it, for which the worker takes paid sick leave. The employer may require notice as soon as practicable after the first day, taking into account the circumstances of the leave.
• Notice of expanded family leave is required as soon as practicable. If the need for leave is foreseeable, that means providing notice before taking leave.

Families First Coronavirus Response Act Guidance on Return-to-School Issues

Parents and children are navigating thorny issues about returning to school. Some school districts require students to attend remotely, and some districts provide parents the option of remote learning or in-person learning. Working parents especially have difficult decisions to make whether working remotely or not. The U.S. Department of Labor has issued guidance in the form of FAQs. In general, the DOL says, if parents who are given a choice decide on remote learning, the FFCRA does not apply. If school sessions are entirely remote, the FFCRA will provide leave to parents but may be unavailable later if the school returns to in-person classes. If a school alternates between in-person and remote learning, FFCRA leave is available for remote-learning days. Following is some of the advice found on the DOL's FFCRA website.

• The employee's child's school is operating on an alternate day (or other hybrid attendance) basis. The school is open each day, but students alternate between days attending school in person and days with remote participation. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
Yes, employees are eligible to take paid leave under the FFCRA on days their child is not permitted to attend school in person and instead must engage in remote learning, as long as they need the leave to care for their child during that time, and only if no other suitable person is available to do so. For purposes of the FFCRA and its regulations for implementation, the school is effectively closed to the child on days he or she cannot attend in person. The employee may take paid leave under the FFCRA on each of the child's remote learning days.
• The employee's school is giving parents a choice between having their child attend in person or participate in a remote learning program for the fall. The employee signed up for the remote learning option. Because the employee's child will be at home, are they entitled to take FFCRA?
No. The employee is not eligible for FFCRA because the school is not closed due to COVID-19 reasons –– it is open for the child to attend. FFCRA leave is not available for the care of children who are able to attend school in person. If the employee's child is home not because the school is closed, but because the parent has elected for the child to to remain home, the employee is not eligible for FFCRA paid leave. If the child is home because he or she is under a quarantine order advised by a health-care provider to self-isolate, the employee may be eligible for FFCRA paid leave.
• Out of concern for COVID-19, the child's school is beginning the school year under a remote learning program, but has announced that it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the year. Is the employee eligible for paid leave under the FFRCA in these circumstances?
Yes. The employee is eligible to take paid leave under the FFCRA while the child's school remains closed. If the child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school's operations.

UPDATE: American Rescue Plan Act of 2021

On March 11, 2021, President Biden signed the American Rescue Plan of 2021 (the Plan, also known as the COVID-19 stimulus package). The Plan is the most recent stimulus bill enacted to address the COVID-19 pandemic, and it comes almost a year to the day the first COVID-19 relief bill was passed. Read the whole bill here.

The key provisions for employers include:

• Families First Coronavirus Relief Act:

The Plan did not extend the FFCRA mandate, but does extend the time period for which employers who voluntarily provide the leave may claim tax credits. Although the FFCRA expired Dec. 31, 2020, the time period to claim tax credits was extended to Sept. 30, 2021. The Plan requires employers who voluntarily provide leave under the FFCRA to allow employees to take the leave for purposes of vaccination. In addition to all the reasons employers previously were required to provide leave under the FFCRA, they must provide it for: (1) obtaining a COVID-19 vaccine; (2) recovering from an injury, disability, illness or condition related to a COVID-19 vaccine; and (3) an employee awaiting the results of a COVID-19 test or diagnosis because either he or she was exposed to COVID-19, or the employer requested the test or diagnosis.

The Plan also expanded paid family leave to be used for all reasons an employee was able to take paid sick leave under the FFCRA. So, an employer voluntarily providing FFCRA leave must allow employees to use expanded paid family leave for all the reasons available under the paid sick leave provision of the FFCRA. This addition allows employees to use expanded paid family leave for reasons other than child care and family care. The new provision allows employees who had not exhausted their FFCRA leave prior to Dec. 31, 2020 to use their remaining leave for reasons other than those established in the original FFCRA.

The Plan is clear that the provision of FFCRA past the expiration date is purely voluntary, but if an employer does provide it, it must adhere to Plan requirements. Employers should be aware of the risk of retaliation if an employee requests FFCRA leave past its expiration date, even if it's discovered that he or she is not eligible for the leave. For a review of the requirements in the original FFCRA, see the sections above.

• Public Employers Eligible for Tax Credits for Voluntarily Providing Expanded FFCRA Leave:

Effective April 1, 2021 through Sept. 30, 2021, tax credits are available for public employers that voluntarily offer FFCRA leave as expanded by the Plan. Public employers should consult payroll and tax advisors to ensure that they are properly taking the available tax credits.

For a complete discussion of the voluntary provision of the FFCRA past the Dec. 31, 2020 expiration date, see the section above, UPDATE: Mandated FFCRA Not Extended Past Dec. 31, 2020.

• Federal Unemployment Insurance Add-On:

The Plan extends the federal unemployment insurance "add-on" of $300 a week through Sept. 6, 2021. It also extends unemployment insurance to gig workers and the self-employed. The Plan deems that the first $10,200 of federal unemployment benefits received in 2020 will be tax-free in 2021 for workers earning less than $150,000.

• COBRA Subsidies:

The Plan includes coverage of 100% of continuing health insurance under COBRA when an employee loses coverage under the employer's health-care plan due to a layoff or involuntary termination. The subsidy period runs from April 1, 2021 to Sept. 31, 2021. Qualifying employees would not have to pay for COBRA coverage.

The Plan has no exceptions, so employers are encouraged to work with their health-care administrators to determine who is eligible for COBRA subsidy under the Plan.

The employer may recover the cost of coverage from the federal government by claiming a credit against its quarterly Medicare payroll tax liability.

• Restaurant/Venue Relief:

Industry-specific relief also is included in the Plan, with money set aside for the restaurant and venue industries.

• Employer Tax Credits for Providing Paid Time Off for Vaccinations:

On April 21, 2021, the Biden administration announced the availability of tax credits for some employers when they provide paid time off to employees to get the COVID-19 vaccination. The intent is for employers to promote vaccination among their workforce without financial burden. The credit may be claimed for employees who get the vaccine and/or are unable to work or telework due to adverse reactions to the vaccine. The credits will be paid for through the Plan, and are available through Sept. 30, 2021. See the fact sheet here.

Employers with fewer than 500 employees are eligible for the tax credits for as many as 80 hours. They are capped at $511 per day or $5,110 total per employee.

The Internal Revenue Service and the U.S. Department of the Treasury have issued guidelines on how to claim the tax credit. See the fact sheet here.

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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