The New Federal FFCRA Act – Issues and Answers for Employees, Employers and Families

The Families First Coronavirus Response Act (FFCRA) is a new, temporary federal law that expands paid sick leave and unpaid family and medical leave protections for public employees and most private employees whose employers have up to 500 employees. Because of the way FFCRA interacts with existing federal, state, and local laws, however, some of those who work for larger employers may also benefit. There are also carve-outs for some employers of fewer than 50 employees.

The contours of this new law are not entirely clear, and employees may have questions about whether or how FFCRA can bring relief under trying circumstances. Some employers are still not certain of their obligations. Lawsuits have begun to multiply in Texas and throughout the United States concerning back pay, unpaid employee benefits, wrongful termination, discrimination, required notification in the event of a permanent closure, and so on. Working parents of school-aged children feel a great deal of uncertainty, caught in the confusion as schools have re-opened under a variety of plans that may include online learning and alternate days of attendance.

Our Employment Benefits Lawyers Can Help Sort Out the Provisions of FFCRA and Other Legal Protections in the Workplace

If you have questions about FFCRA, we have answers. Click here to find out about basic Family Medical Leave Act protections. Click this link to learn more about your employee safety and whistleblower protection in the workplace during the COVID-19 pandemic and beyond. If you believe your employer has not accommodated your request for FFCRA benefits, reach out to us using this link Contact Kilgore Law. The way that FFCRA may apply to you depends on the details of your situation.

The Basics of the New FFCRA Law

The FFCRA requires covered employers to provide up to 80 hours of paid leave to employees for certain COVID-19-related reasons under the Emergency Paid Sick Leave Act (PSLA) and expands the Family Medical Leave Act (FMLA) to provide employees with up to 12 weeks of emergency paid leave to care for a child as a result of school or childcare closings due to a public health emergency. By its terms, the requirements of the FFCRA expire on December 31, 2020.

Things Can Get Complicated with the New FFCRA Law

Which employers and employees are covered by FFCRA?

  • Employers of more than 500 employees are not covered — FFCRA is intended to work by providing tax credits to small (but not the smallest) employers. In theory, under the FFCRA, employers with under 500 employees could afford to provide extended paid leave to their employees. Employees of larger businesses, however, may also be eligible for benefits under other provisions of federal, state, and local law.
  • Most private employers of between 50 and 500 employees are also covered by FFCRA — The 500- employee threshold counts full-time and part-time employees within the United States, employees on leave, as well as temporary workers and day laborers supplied by a temporary agency. It does not cover independent contractors or gig workers.
  • Most employees of the federal government are covered by Title II of the FMLA, which was not amended by FFCRA, and are therefore not covered by the extended family and sick leave provisions. However, federal employees covered by Title II of FMLA are also covered by the sick leave provisions in the FFCRA.
  • Healthcare providers and emergency responders, some of whom are also public employees, may be excluded from the paid sick leave or extended family and medical leave entitlements.
  • Employers with fewer than 50 employees may not have to offer emergency paid sick leave and extended FMLA leave to their employees if they can demonstrate that doing so would “jeopardize the viability of the business as a going concern.”

Are part-time workers, independent contractors, and furloughed employees covered by FFCRA?

Part-time workers are generally covered, but the calculation of their entitlement is adjusted to reflect the fact that they work fewer hours. Most employers do not cover independent contractors and gig workers under their existing employee benefits. These workers are not covered by FFCRA either. If you are a furloughed employee because your employer does not have enough work for you, you are not entitled to take paid sick leave or paid expanded FMLA benefits. However, you may be eligible for unemployment insurance benefits.

When taking paid sick leave, can I get my full pay?

Benefits are capped, depending on your reason for being away from work and the length of time you plan to be off. The calculation of your benefit is something that our employee benefits lawyers would be glad to explore with you individually. If you are taking paid sick leave, how much you can get paid will depend on several factors, including:

  • Your regular rate of pay;
  • The reason why you are taking paid sick leave – whether for yourself or to care for another, and whether you have been advised to self-quarantine, or have symptoms; and
  • How much sick leave you have already used.

What if my employer just says no? What can I do?

At best, you may have been denied because of a documentation issue. The Department of Labor issued detailed guidance that may provide a way to solve this problem. To find this information online, enter the following URL into your browser: Beyond that, it is important to remember that HR or accounting personnel at smaller businesses may be struggling with the onslaught of new requirements. Oftentimes, having an employee benefits attorney explain your request regarding FFCRA qualification requirements is a better way to go. To get this started, use this link Contact Us to reach the employee benefits attorneys at Kilgore & Kilgore.

FFCRA Lawsuits Are Multiplying

The Department of Labor has already pursued several investigations. Then, of course, there is the option of an employee benefits lawsuit. FFCRA compliance problems have already spawned many of them in Texas and elsewhere. There will certainly be more. These lawsuits are not always brought under the terms of FFCRA. They may appear as wage and hour claims, retaliation claims, discrimination claims, or wrongful termination claims. It may be too early to discern trends in these lawsuits, except an uptick trend in Covid-19 and FFCRA lawsuits, that there will be more of them in the future. Here are a few examples:

  • In Texas, DOL investigators found that West Texas Paving failed to pay an employee for FFCRA-qualifying paid sick leave after he informed the company about his COVID-19 medical diagnosis and was hospitalized.
  • A Texas attorney who worked as general counsel at a commercial real estate firm near Dallas reportedly filed a lawsuit against her former employer for firing her for refusing to violate a local stay-at-home order during the COVID-19 pandemic.
  • In Michigan, a senior living facility employee claimed that she was terminated after using her approved FMLA leave following a positive COVID-19 test.
  • In Pennsylvania, an employee alleges that he was the victim of a wrongful termination after he told other employees that a co-worker had been exposed to COVID-19.

Parents of School-Aged Children Face Special Challenges

Parents of school-aged children whose schools may be open, or online only, or some variation of both options, or just subject to sudden school changes face particularly bewildering choices. In late August, the DOL released additional guidance under the FFCRA that clarified several issues including the following:

  • If a school is operating on an alternate day or other hybrid- attendance basis, employees are eligible under the law for FFCRA paid leave on days when the child is not permitted to attend school in person and must instead engage in remote learning, as long as an employee needs leave to care for the child during that time, and only if no other suitable person is available to do so. Conversely, FFCRA paid leave is not available to take care of a child whose school is open for in-person attendance, even if the parent is hesitant to send the child to school because of the risk of infection.
  • If a child is under a Covid-19 quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, an employee may be eligible to take paid leave to care for the child.
  • FFCRA leave is not generally available to care for someone else’s child.

Reach out to our Employee Benefits Lawyers for Advice About FFCRA – What You Are Entitled to and How to Get Your FFCRA Benefits

We are living through a time of great uncertainty. This affects our work, our jobs, our families, and our health. Our Texas employment benefits lawyers can help you assess your FFCRA and FMLA benefits situation and advise you on the best way to go forward. We offer a free evaluation of the facts of your case. To get this started, use this link Contact Us to reach out to us.

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