If I furlough an employee or close my business, do I have to provide employees with paid Family Medical Leave under The Family First Corona Virus Response (“FFCRA”)?
The short answer is no, generally not. However, before you can fully understand your responsibilities to provide paid family leave to your employees you need to understand some basics about the FFCRA.
The Family First Corona Virus Response Act (“FFCRA”) was signed into law on March 18, 2020. Division C of the FFCRA, entitled “The Emergency Family and Medical Leave Expansion Act” amends the Family and Medical Leave Act (“FMLA”) and permits certain employees to take up to twelve weeks of expanded family and medical leave. Division E of the FFCRA, entitled “The Emergency Paid Sick Leave Act” allows certain employees up to two weeks of paid sick leave. The FFCRA applies to all employers with less than 500 employees, however small businesses with fewer than 50 employees may seek an exemption if compliance with its requirements would jeopardize the viability of the business. The FFCRA became effective on April 1, 2020, although the Department of Labor has indicated that it will not begin enforcement until April 17, 2020.
Expansion of the FMLA
The Emergency FMLA Expansion Act component of FFCRA amends and expands the protections of the existing Family and Medical Leave Act (the “FMLA”) through December 31, 2020. The new expanded Act provides that any qualifying employee (i.e. an employee who has been working for his/her employer for at least 30 days) can:
- Take up to 12 weeks of job-protected leave if the employee has a “qualifying need related to a public health emergency.
- A “qualifying need” is when an employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age whose school or child care is closed (or child care provider is unavailable) for reasons related to COVID-19.
- The first 10 days of leave may be unpaid, however, employees can choose to substitute accrued vacation, personal, or sick days, or the paid sick leave provided by the Emergency Paid Sick Leave provisions of the FFCRA for these 10 days.
- Employers must pay the remainder of the 12 weeks of leave at a rate of two-thirds of the employee’s regular rate of pay (or the minimum wage, whichever is higher) up to $200 per day.
- Employees who take leave under the FMLA Expansion are entitled to be restored to their position, or an equivalent position, at the end of the leave, subject to certain exceptions outlined in the FMLA.
Responsibilities to furloughed employees and employee leave rights upon business closure
- Employers who furlough an employee do not have to provide the furloughed employee with paid sick leave or expanded family and medical leave. The furloughed employees may be eligible for unemployment insurance benefits, however.
- If an employer closes its business employees are not entitled to expanded family and medical leave, even if the employee requested the leave prior to the closure.
- If an employer closes its business while an employee is already out on expanded family medical leave, the employer must pay the employee for the expanded family and medical leave used before the employer closed. As of the date that the employer closes it is longer obligated to pay the employee for expanded family and medical leave
State and federal regulations and guidance related to Covid 19 is changing daily. You should always contact your legal or financial professional to obtain the most up to date and relevant information for your individual circumstances. If you are an employer with 500 or fewer employees and you need assistance interpreting the FFCRA, we can help! Email: Julie Pfaff at firstname.lastname@example.org.