On April 1, 2020, the Families First Coronavirus Response Act (FFCRA) goes into effect, expanding FMLA to address the COVID – 19 pandemic.
The FFCRA applies to public sector employers just like the FMLA. To qualify for leave under the FFCRA employees only need to have worked for the employer for at least 30 calendar days. The 30 days do not need to be consecutive. Normally FMLA requires an employee to have worked for 1250 hours and 12 months. The FFPRA eliminates this FMLA requirement for leave related to the COVID – 19 pandemic.
The employee must be unable to work (or work remotely), due to a need to care for their son or daughter under 18 years old, if:
1) the elementary/secondary school or place of care has been closed, or
2) the childcare provider of the son or daughter is unavailable due to declared COVID-19 public health emergency
One caveat is that employers can exclude emergency responders or healthcare providers
Employees are still required to give notice. When the necessity for leave is foreseeable, an employee should give notice as soon as practicable.
Although early versions of the bill contained an explicit provision stating that intermittent leave would not be permitted under this new law, the final version is silent as to if intermittent leave will be allowed. Accordingly, intermittent leave is only required when medically necessary. However, employers may opt to allow employees to take this leave intermittently.
Under the FFCRA the first 10 days of leave may be unpaid. However, employees may use their leave banks to cover this period. Then the leave will be paid at the rate of at least two-thirds (2/3) the employee’s regular rate of pay (not to exceed $200 per day and $10,000 in the aggregate). Employees who work part-time/irregular schedules are entitled to a rate based on the average number of hours worked over a six-month period. Employers will receive tax credits to cover $200 per day and $10,000 in the aggregate but may offer additional paid leave if they choose to. FFCRA paid leave does not carry over and is not paid out at separation.
Like with any FMLA leave FFCRA leave includes job protection. The employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started. Employers with less than 25 employees are exempted from this if the employees position no longer exists.
Like with any FMLA leave, employers cannot discriminate or retaliate against an employee for taking leave.