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Federal Emergency Paid Leave Mandated by the Families First Coronavirus Response Act

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA” or “Act”) was enacted in response to the COVID-19 pandemic.  The Act provides employees with paid sick leave and expanded family and medical leave relating to the pandemic, and provides employers with corresponding tax credits.  The emergency leave benefits to eligible employees are:

            1.         Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate if the employee cannot work because the employee is quarantined and/or experiencing symptoms of COVID-19 and seeking medical diagnosis;

            2.         Two weeks (up to 80 hours) of paid sick leave at 2/3 the employee’s regular rate if the employee cannot work because the employee has a bona fide need to care for a quarantined individual, or care for a minor child if the school or child care provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition; and

            3.         Up to ten additional weeks of paid family and medical leave at 2/3 the employee’s regular rate if an employee has been employed for at least 30 days and is unable to work because the employee needs to care for a minor child if the school or child care provider is closed or unavailable due to COVID-19.

At present, all private and certain public employers with fewer than 500 employees must comply with the FFCRA.  Some employers with fewer than 50 employees may be exempted from certain provisions of the Act as new guidelines emerge.

On March 25, 2020, the Department of Labor published additional compliance guidelines including a model notice for all covered employers to conspicuously place at their business premises.  For teleworkers and businesses currently operating virtually during shelter-in-place orders, the Department has advised that emailing the form of poster to employees constitutes compliance with notice provisions of the Act. 

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Initially, employers covered by the FFCRA will be responsible for paying these emergency leave benefits, although the Act also provides for dollar-for-dollar tax credits against payroll taxes.  On March 20, 2020, the IRS stated its intent to implement a plan for faster reimbursement so that the employers need not wait until 2021 to realize the tax benefits.

Although employers may choose to provide FFCRA paid family leave and paid sick leave to their employees and take advantage of the tax credits now, compliance with the FFCRA is mandatory as of April 1, 2020 through December 31, 2020.  Violations of the Act will not be enforced until after April 17, 2020 to allow employers time to comply with the Act’s provisions.

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