The Families First Coronavirus Response Act: What Your Healthcare Practice Needs to Know

When your employee requests time off for COVID-19-related reasons, what are your obligations? Find out how the FFCRA applies to your independent practice or business.

(2021 Update: the FFCRA leave requirements discussed below expired Dec. 31, 2020)

The Families First Coronavirus Response Act (FFCRA) was put in place by the U.S. Department of Labor (DOL) in response to the effects of the Coronavirus pandemic. The Act aims to protect workers’ ability to maintain their job schedules and duties while adjusting to quarantine mandates, childcare and school facility closures, and family caretaking. The Act itself “requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.” The paid sick leave provisions of FFCRA are in effect through December 31, 2020.

If you’re not certain how the Act applies to you, you’re not alone. Which employers and employees are subject to FFCRA regulation? What are the terms regarding qualifying for leave, length of leave, pay rates and tax credits, notice, and prohibitions? Does the DOL enforce the FFCRA, and if so, what are the penalties for noncompliance?

As a busy healthcare practice or business owner, it’s easy to put off thinking about it until a staff member requests a COVID-related leave. However, wise employers prepare for such a situation. Moreover, covered employers (discussed below) must post the FFCRA requirements in a conspicuous area of the workplace as a notice to all employees. Fortunately, DOL provides a downloadable FFCRA poster for this purpose.

To help you understand the basics, we share our clients’ most common questions.

What types of employers have to comply with the FFCRA?

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers and private employers with fewer than 500 employees.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability. In this circumstance, the leave would need to jeopardize the business’s viability as a going concern.

Do we have to pay our employees for time off given under the FFCRA?

Yes. Generally, payments are based on an employee’s regular work schedule and calculated based on the reason for the leave. 

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a healthcare provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a healthcare provider), or care for a child under 18 years of age whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
• Up to an additional ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Can I require employees to provide proof of COVID-related illness (e.g., a positive test result)?

No. You cannot require your staff to furnish a positive test result or other evidence of COVID-19 exposure or illness.

Can I require employees to provide proof of COVID recovery such as a negative test result or doctor’s note before they return to work?

No. CDC Guidelines prohibit requiring medical proof of recovery in order to return to work.  

How far back must I notify individuals that interacted with a now-infected employee?

Notify any patients or coworkers who have been in close contact with an infected employee as far back as 14 days. Alert them of the potential exposure and advise that they follow appropriate self-isolation and testing guidelines. 

How is “close contact” defined? The CDC recently redefined close contact as being within 6 feet of an infected person for a total of 15 minutes or more during a 24-hour period, starting from two days before the onset of illness or the specimen collection (in the case of a positive test for an asymptomatic carrier). 

In general, we advise that employers stay abreast of  CDC’s quarantine guidelines. In the event of a lawsuit or enforcement action, you’ll want to be able to demonstrate that you followed the guidelines that were in place at the relevant time.

Can I share the individual employee’s name in the notifications?

Notification that an employee has tested positive may not identify the individual by name or other identifying information. Additionally, employers should disclose the positive test only to those in proximity to the individual during the relevant time period, as defined above.

Do employers have to pay the full hourly/salary rate for employees?  

Not necessarily:

• For employees on leave subject to a Federal, State, or local quarantine or isolation order related to COVID-19; those advised by a health care provider to self-quarantine related to COVID-19; or one who is experiencing COVID-19 symptoms and seeking a medical diagnosis; employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
• For employees on leave caring for an individual subject to an order related to COVID-19 or self-quarantining related to  COVID-19 or experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury, employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
• For employees on leave caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, a full-time employee is eligible for up to 12 weeks of leave at 40 hours a week. A part-time employee is eligible for leave for the number of hours that the employee is usually scheduled to work over that period.

Recall, the paid sick leave provisions of FFCRA are only in effect through December 31, 2020.

Are there any tax benefits or credits for leave taken under the FFCRA?

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. 

How important is this? Is anyone monitoring FFCRA Compliance?

The first FFCRA lawsuit was filed in April 2020, a few weeks after the Act’s passage. In the intervening six months, an onslaught of suits has followed. Many involve allegations of retaliation against employees who stay home in accordance with public health guidelines related to coronavirus exposure and prevention. 

Looking at these cases from the employees’ perspective, a non-compliant employer presents an unsteady circumstance:

• A refusal to honor time away with the mandated pay puts the employee at a disadvantage and presents a choice between caring for oneself and/or family or losing income.
• Following public health guidelines and taking precautions when experiencing symptoms jeopardizes job security.
• Employers who fail to adhere to the FFCRA are implicitly (or perhaps explicitly) encouraging employees to come to work sick and leave unhealthy family members and/or school-aged children unattended for fear of losing their livelihood. 

Simply put, employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Aside from the moral and safety obligations, as well as the imperative to avoid litigation, there are penalties for non-compliance with the FFCRA’s 2-week pay provisions— assessed under the Fair Labor Standards Act (FLSA).

Meanwhile, employers in violation of the provisions that provide for up to an additional ten weeks of paid leave to care for a child whose school or place of care is closed or child care provider is unavailable are subject to the enforcement provisions of the Family and Medical Leave Act (FMLA). 

DOL will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.

Conclusion

In summary, non-compliance with the FFCRA demonstrates to your employees a lack of commitment to their well-being. Non-compliance also puts your business at risk of penalties from multiple federal regulatory provisions beyond the seemingly simple FFCRA.  

For guidance on the FFCRA’s applicability to your healthcare business or practice, consult a legal professional. At our law firm, we help our clients address a myriad of employment issues that arise from the pandemic—and the new legal environment that it has created. To learn how a Jackson LLP healthcare attorney can support your compliance efforts, schedule a free consultation with us.

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.