Families First Coronavirus Response Act

On March 24, 2020 the US Dept of Labor issued Q&As on the Families First Coronavirus Response Act (see our original blog post:  Urgent HR Law COVID-19) pending publishing of formal regulations and published a mandatory notice that must be provided to all employees.

As a reminder, the bill provided for a number of relief actions; however, this update will focus on the 2 directly related to employers and employees:

  • Expanded Family and Medical Leave – which provides for a new type of paid FMLA leave.
  • Emergency Paid Sick Leave – which provides for a new type of paid sick days benefit.

Effective Dates – Although we originally expected the laws to take effect on April 2, both will be in effect on April 1, 2020.

Employer Coverage – As the laws apply to companies with fewer than 500 employees, how do employers assess their headcount?

  • At the time the leave is taken, you count all full time and part-time employees within the US including territories and possessions.
  • All employees count – those on leave, temporary employees jointly employed by you and another entity, day laborers through a temp agency. True independent contractors may be excluded.
  • A corporation and all its separate establishments and divisions are considered one single employer.
  • For a corporation with an ownership interest in another corporation, both would be separate employers unless considered a “joint employer” under the Federal Fair Labor Standards Act in which case both groups of employees would be counted.
  • Other related entities will be considered separate employers unless they meet the “integrated employer” test under the Federal Family Medical Leave Act.

Exemptions – The laws allow employers with fewer than 50 employees to be exempt if compliance would jeopardize the viability of the business. We’ve had many, many questions asking for details about how such an exemption would be obtained. For now, the DOL advises businesses to document why your business would meet the criteria and have promised more details in the upcoming regulations. They have asked that no one send any information at the current time to the DOL.

Pay During Emergency Paid Sick Leave

  • When calculating pay for hourly employees, any overtime the employee would normally have been scheduled to work must be included even if the total weekly hours is over 40; however, the premium portion of overtime may be excluded. For example, an employee who typically works a 50-hour workweek with 40 hours paid at straight time and 10 hours paid at time and a half, would get 50 hours of emergency paid sick leave paid at straight time for that week.
  • The total number of hours that an employee is entitled to for emergency paid sick leave is still 80 hours for full-time employees and a pro-rated amount for part-time. In the example above, the employee who got 50 hours in his/her first week of leave would only have 30 left in the second week.

Regular Rate of Pay – Both types of leaves must use an hourly employee’s “regular rate of pay” when calculating pay. For purposes of FFCRA this will be the average of the employee’s regular rate over a period of up to 6 months prior to the date on which the leave commences. Keep in mind that the regular rate of pay must factor in all additional forms of non-discretionary compensation such as commissions, tips, piece rates, etc.

Multiple Reasons to use Emergency Paid Sick Leave – If an employee takes 80 hours of emergency paid sick leave for one permissible reason such as caring for him/herself due to being ill with COVID-19, the person will have exhausted all available leave and would not be entitled to another 80 hours even if there is then another qualifying reason to take leave such as caring for a quarantined family member.

Coordination of Extended FMLA and Emergency Paid Sick Leave – Extended FMLA is available for up to 12 weeks if an employee cannot work or “telework” due to needing to care for a child whose school or childcare is not available due to COVID-19. The first 10 days of this leave would be unpaid during which time the employee could use existing sick or PTO but could also use the new Emergency Paid Sick days. Using any other paid time off available during these initial 10 days does not increase the maximum about of time off of 12 weeks.

Mandatory Notice

  • GET YOUR COPY HERE: Employee Rights under the Families First Coronavirus Response Act
  • This notice must be posted at your place of business in a conspicuous place. Employers are permitted to mail or email the notice directly to employees or post on their company website.
  • Additional language versions are being developed but are not yet available and are not required.

More Questions – We all still have so many more questions on this new law but are hopeful that the promised regulations will answer them. In the meantime, please reach out to us at Vantaggio for help understanding this new, complex law and or any assistance with what this means for your specific circumstances and staff.

Call: 877-VHR-RELX



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