Following sweeping bipartisan support from Congress, on Wednesday, March 18, 2020, President Donald Trump signed into law H.R. 6201, the Families First Coronavirus Response Act (FFCRA).

The FFCRA is aimed at providing support for individuals who have been affected by the 2019 Novel Coronavirus (COVID--19). The support includes free coronavirus testing, expanded eligibility for unemployment benefits and additional funding for various food assistance programs.

The FFCRA has far reaching implications for small and midsize businesses. It requires employers with fewer than 500 employees to provide sick leave benefits to employees impacted by COVID-19. In an unprecedented expansion of FMLA, the law also requires covered employers to provide paid protected leave to employees affected by school closures and interruptions in childcare as a result of the pandemic. The law also addresses employers subject to multi-employer collective bargaining agreements allowing them to satisfy the FFCRA’s obligations by making contributions to a multi-employer benefit plan.

The Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (EPSLA), contained within the FFCRA, requires employers with fewer than 500 employees to provide paid sick leave to employees who are unable to work, or telework, because the employee:

• Is subject to a federal, state or local quarantine or isolation order.
• Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
• Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• Is caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.
• Is caring for his or her child whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 precautions.
• Is experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are eligible for 80 hours of leave and part-time employees are eligible for the number of hours they work, on average, over a two-week period. While the leave must be paid at the employee’s regular rate, the EPSLA does impose caps on the amounts paid to employees. Specifically, leave taken for the employee’s own COVID-19 related condition is capped at $511 per day and leave taken to care for an individual or child is capped at $200 per day.

Employees are eligible for the foregoing benefits regardless of their tenure with the company. Importantly, paid sick time provided under this Act is in addition to any leave the employer provides employees, and employees cannot be required to use other leave benefits provided by the employer before using FFCRA benefits.

Employers are required to post a notice of the requirements described in the EPSLA in the workplace in conspicuous places where notices to employees are customarily posted, and are prohibited from retaliating against employees who avail themselves of the protections of the EPSLA. The Secretary of Labor must make a model notice available to the public within seven days.

The Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (the FMLA Expansion Act), also contained within the FFCRA, amends the Family and Medical Leave Act to provide job-protected leave for a public health emergency related to COVID-19. Eligible employees may use the leave under this section when the employee is unable to work (or telework) because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19. Unlike paid sick leave under the EPSLA which has no tenure requirement, an employee must have worked for at least 30 calendar days for the employee to be eligible for benefits under the FMLA Expansion Act.

Like the EPSLA, the FMLA Expansion Act applies to employers with fewer than 500 employees. However, the Secretary of Labor is authorized to exempt businesses with fewer than 50 employees where “the imposition of such requirements would jeopardize the viability of the business as a going concern.” The Secretary of Labor may also exclude certain healthcare providers and emergency responders from the definition of eligible employee.

Leave under the FMLA Expansion Act is unpaid for the first two weeks. After the first two weeks, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid.

Employers should note the following key differences between traditional FMLA leave and FMLA Expansion Act leave:

• The FMLA Expansion Act removes the exclusion that the employer must employ 50 employees within a 75-mile radius. As such, employers with fewer than 500 employees that may not otherwise qualify as employers under the FMLA will now be required to administer FFCRA-protected leave. It also removes the 12-month and 1,250-hour employee qualification for employees. Instead, an employee is eligible after he or she has been employed for at least 30 calendar days.
• Unlike FMLA leave, which is typically unpaid, leave under this section is paid after the first two weeks.

Taken together, and subject to the Act’s exceptions and qualifications, the EPSLA and FMLA Expansion Act provides up to 12 weeks of paid leave for certain employees affected by COVID-19. The provisions of EPSLA and FMLA Expansion Act will take effect no later than 15 days after the date of the enactment of these Acts.

Employers Subject to Multi-Employer Bargaining Agreements

The law also addresses employers that are subject to multi-employer collective bargaining agreements. Such employers may satisfy the FFCRA’s requirements for paid sick or FMLA leave by making contributions to a multi-employer fund, plan, or program consistent with its collective bargaining agreement or bargaining obligations. Employees working under the multi-employer collective bargaining agreement must be able to secure payment from the fund, plan, or program based on the number of hours the employee worked.

Expansion of Unemployment Benefits

Also of interest to employers and employees is the FFCRA’s Emergency Unemployment Insurance Stabilization and Access Act. Under this Act, the Secretary of Labor is to provide emergency funding to state unemployment trust funds. The Act is designed to ease eligibility requirements and increase access to unemployment compensation for claimants directly affected by COVID-19 due to an illness in the workplace or direction from a public health official to isolate or quarantine workers. Important measures include waiving the work search requirements and the waiting week.

Tax Credits for Paid Sick Leave and Paid Family and Medical Leave

To provide some relief to employers, the law does provide some tax credits. Subject to certain caps and restrictions, employers are eligible to receive refundable tax credits for paid sick and protected leave based on the type of leave and whether the leave is for the employee or the employee’s family member.