The Families First Coronavirus Relief Act (the Act) was passed on March 18, 2020 and imposes paid leave obligations on most employers throughout the country. The bill contains special and often overlooked provisions affecting public agencies. Those provisions could provide a “trap” for public agencies that do not carefully review the bill.

Definition of “public agency.” A “public agency” is defined broadly to include the government of the United States; the government of a state or political subdivision of a state; or an agency of the United States, a state, or a political subdivision of a state, or any interstate governmental agency.

Application of employee threshold. For purposes of the law’s paid leave obligations, a covered employer in the private sector includes any employer with fewer than 500 employees. This threshold does not apply to public agency employers. Public employers with only one employee are covered by the bill’s paid leave provisions, meaning large public employers with more than 500 employees are covered by the paid leave provisions.


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On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. The Act goes into effect on April 1, 2020 and remains in effect through December 31, 2020.

As discussed in our prior client alerts “Recent Clarifications to Families First Coronavirus Relief Act” and “Senate Passes Coronavirus Bill Requiring Paid Leave,” the Act provides for up to 80 hours (two weeks) of Emergency Paid Sick Leave if an employee is unable to work or telework for one of six specified reasons. Additionally, the Act provides up to 12 weeks of Emergency Paid FMLA Leave for one qualifying reason — that the employee is unable to work or telework due to the need to care for the employee’s minor child because the child’s school or place of care has been closed due to this public health emergency. The first two weeks of Emergency Paid FMLA Leave is unpaid, though the Emergency Paid Sick Leave will be applied to cover the first two weeks.

There are a myriad of questions and issues for employers to work through in applying these new provisions. Our team has been working non-stop to interpret these provisions, review new guidance, and provide answers. In addition, the Department of Labor (DOL) has established the COVID-19 and the American Workplace webpage, which includes a variety of fact sheets, Question-and-Answer pages, and workplace posters available to employers detailing these provisions.


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By now, you’re likely aware of the Families First Coronavirus Response Act (FFCRA). This law, which will take effect on April 1, 2020, requires certain employers to provide employees with paid sick leave under the Emergency Paid Sick Leave Act (EPSL) or expanded paid family and medical leave under the Emergency Family and Medical Leave Expansion Act (expanded FMLA) for several reasons related to COVID-19. As a refresher, the FFCRA generally provides that employees of covered employers are eligible for one of the following:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is (1) unable to work or telework because the employee is quarantined (due to a federal, state, or local government order or the advice of a health care provider) and/or (2) 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 where the employee is (1) unable to work or telework while caring for an individual subject to quarantine (due to a federal, state, or local government order or the advice of a health care provider), (2) unable to work or telework because of a need to care for a child (either a minor child under 18 years of age or an adult child who has a mental or physical disability and is incapable of self-care because of that disability) whose school or child care provider is closed for reasons related to COVID-19, and/or (3) 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; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee who has been employed for at least 30 calendar days is unable to work or telework due to a need to care for a child whose school or child care provider is closed for reasons related to COVID-19.

Private employers with fewer than 500 employees and certain public employers are covered. Small businesses with fewer than 50 employees may qualify for exemption, which is discussed below.


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The Department of Labor (DOL) recently clarified numerous issues under the Families First Coronavirus Relief Act (FFCRA) in three notices released on March 24, 2020. We previously provided a summary of the law’s paid leave provisions in a client update on March 19, 2020. Some of the clarifications made in the recent guidance include the following:

The paid leave provisions go into effect on Wednesday, April 1, 2020.

The law does not apply retroactively, which means that employers who provided paid leave prior to April 1, 2020, cannot count leave payments as having been made under the FFCRA, and also cannot claim a tax credit for such amounts.

All employees (full-time and part-time) within the United States or any of its territories are counted in determining the 500-employee threshold for whether an employer must comply with the paid leave obligations. Employees on leave, temporary employees, and leased employees from a temporary employment agency are also counted. The threshold is determined as of the time an employee’s leave is to be taken.


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On March 19, 2020, Senate Republicans rolled out a $1 trillion economic stimulus plan commonly referred to as “Phase III” of the legislative response to the coronavirus pandemic. The bill — the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) — provides additional detail on the paid leave provisions in the “Phase II” bill and contains some additional provisions that affect employees.

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With the coronavirus pandemic bearing down hard upon us, employers are justifiably concerned, if not on the verge of panic, about the potentially catastrophic impact on their employees and businesses. Make no mistake about it, the coronavirus pandemic is a crisis in every sense of the word: a public health and safety crisis, an economic crisis, a social and psychological crisis, a threat to all we hold dear. In just a few short days, it has brought government agencies, many public services, schools, both public and private, and businesses to a screeching halt and is threatening to devastate the lives of any employer’s most valuable asset, its employees. To minimize the impact, it is imperative that employers adopt and implement a plan for crisis management and recovery. And each aspect of your plan must take into account both the practical realities and applicable federal and state labor and employment laws to ensure success and avoid any employment-related lawsuits or agency enforcement actions.

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On March 18, 2020, the Senate passed the “Families First Coronavirus Response Act,” which contains provisions related to mandatory paid leave for employers with fewer than 500 employees. A summary of the bill, which is supposed to be effective within 15 days of enactment, is below.

The bill creates a new paid leave benefit called “emergency paid leave.”

Reasons for Leave: Employees who are eligible for “emergency paid leave” are those individuals who are unable to work due to one of the following conditions or situations: (i) the employee is subject to a federal, state, or local isolation or quarantine order; (ii) the employee has been advised by a health care provider to self-quarantine; (iii) the employee is experiencing symptoms of coronavirus and seeking a medical diagnosis for the symptoms; (iv) the employee is caring for an individual who is subject to a quarantine order or who has been advised to quarantine by a health care provider; or (v) the employee is caring for a child because the child’s school or place of care has been closed due to COVID-19.


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One of the bigger questions with the Emergency Paid Sick Leave Act is an employer having to pay for leave because “the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19”. Does that apply when the business itself is shut-down by the government, but the employee is free

On March 14, 2020, the House of Representatives passed H.R. 6021, the “Families First Coronavirus Response Act,” which contains provisions related to mandatory paid leave for employers with fewer than 500 employees. Since passage, the House has been working on “technical corrections” to the bill prior to sending the bill to the Senate for consideration. The technical corrections were voted on and passed by the full House late in the evening on March 16, 2020.

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As the coronavirus continues to spread within the United States, employers are dealing with a number of issues with respect to workforce, labor, and employee benefits. The following are common questions regarding employee benefits issues that employers may face sooner rather than later. We will update this list of questions and answers as the situation unfolds.

Q1: If an employer furloughs employees, are they still eligible for group medical plan coverage?

It depends. The terms of the group medical plan document or applicable certificate of coverage will dictate whether employees who are no longer “actively at work” may continue active coverage. Most plans provide that an employee who is not “actively at work” may only continue coverage for a designated period of time. After the expiration of this designated period, active coverage will be terminated and the covered employee will be eligible for COBRA.

Employers that maintain “self-funded” plans may have more flexibility, as they may amend their plans to waive eligibility conditions and allow furloughed employees to continue active coverage. (Note that some employers with fully insured plans may be able to work out similar arrangements with their insurance carriers.) Employers with self-funded plans that want to waive actively at work requirements or extend coverage while employees are on leave or furlough need to obtain the consent of their reinsurance carriers to avoid any coverage issues.

Finally, employers utilizing an Affordable Care Act (ACA) lookback and stability approach to determine full-time status for health plan purposes should consider whether affected employees are in a stability period that would result in continued eligibility for the duration of the stability period. Reduced hours in 2020 might impact such employees’ full-time status for the next stability period (e.g., 2021 for plans using a calendar year stability period). Employers should also consider whether to provide relief for such employees in future stability periods.

Q2: If an employee is on leave because he or she is experiencing coronavirus-like symptoms, is the employee eligible for group medical coverage?

It depends on whether the employer sponsoring the plan is subject to the Family and Medical Leave Act (FMLA). If so, then the leave is likely protected by the FMLA, meaning that continued group medical coverage must be provided for the period of FMLA leave, and the employer’s policies regarding payment for coverage during FMLA-qualifying leaves will apply. For employers that are not subject to the FMLA, applicable policies and procedures regarding continued coverage during periods of sick leave will apply, as well as the plan terms and ACA full-time measurement and stability issues noted in Q1 above.


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