Insight

Frequently Asked Employment Questions About COVID-19

One employment lawyer answers frequently asked questions concerning employment and the Family First Coronavirus Response Act.

Questions About Family First Coronavirus Resp
Greg Mansell

Greg Mansell

April 10, 2020 08:00 AM

The Family First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020. The FFCRA includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Here are some frequently asked questions related to the FFCRA and your employment:

What is the effective date when employers must start complying with the FFCRA?

April 1, 2020. The provisions will be in place until Dec. 31, 2020, unless extended.

Which employees are covered by the FFCRA?

Employees that work for employers with 500 or fewer employees within the United States, at the time the employee takes leave. This includes full-time employees, part-time employees, employees on leave, and temporary employees (including individuals who are working as part of a temporary agency). It does not include individuals who are properly classified as independent contractors rather than employees.

What if my private sector employer has more than 500 employees? Does the FFCRA still apply?

No. Private sector employers are only required to comply with the FFCRA if they have fewer than 500 employees. However, the Americans with Disabilities Act and the Family and Medical Leave Act (FMLA) still apply.

Can certain small employers ask to be exempt from the FFCRA’s requirement?

Yes. If providing childcare-related paid sick leave or expanded family and medical leave at a private employer with fewer than 50 employees would jeopardize the viability of that business, then that small business can apply for an exemption.

How are hours worked counted for part-time employees for purposes of paid sick leave and expanded family medical leave?

Part-time employees are entitled to leave based on the average number of work hours in a two-week period. You calculate the hours of leave based on the number of hours the employee is regularly scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you should use a six-month average to calculate the average daily hours. Therefore, a part-time employee can take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave for the same number of hours per day up to ten additional weeks after the two weeks.

Are overtime hours included when calculating pay for employees on leave?

Under the Emergency Family and Medical Leave Expansion Act, the answer is yes. It requires employers to pay employees for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

Under the Emergency Paid Sick Leave Act, however, the employer is only required to pay up to 80 hours over a two week period for full-time employees.

Neither Act requires payment of an overtime premium for the overtime hours. In other words, no time-and-a-half.

How much will you get paid while when you are on leave under the FFCRA?

This is dependent on your normal work schedule and the reason you are taking leave.

Paid sick leave is at the employee’s regular rate of pay but capped: $511 per day and $5,110 in total for a use described in paragraph (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.

For paid sick leave due to: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise you are entitled to pay at two-thirds of the greater of the amounts above. This pay is capped at $200 per day and $2,000 in over the two week period.

Under FMLA, the employer can provide the first 10 days of leave unpaid, then future absences beyond the 10-days must be paid at two-thirds the employee’s regular rate of pay. The FFCRA caps the pay at $200 a day and $10,000 in total. If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid leave.

Can an employer deny an employee paid sick leave if the employer gave the employee paid sick leave prior to April 1, 2020 (the date the FFCRA went into effect)?

No. The employer must still adhere to the FFCRA’s requirements regardless of whether it provided paid sick leave prior to April 1, 2020, and regardless of the reason the paid sick leave was provided.

How long do I have to be employed to qualify for paid under the FFCRA family and leave expansion?

You must be employed for 30 calendar days immediately prior to the date your leave would begin.

What documentation must an employee provide to an employer to get paid sick leave or expanded family and medical leave?

An employer can require that you provide support of your expanded family, and medical leave is taken to care for your child whose school or place of care is closed/unavailable because of COVID-19-related concerns. This can include a notice of closing or unavailability from the child’s school or child care provider, a notice posted on a government, school, or daycare website, published in a newspaper or online article, or e-mailed to you from an employee or official of the school, place of care, or child care provider.

All existing certification requirements under the Family and Medical Leave Act remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. By way of example, if taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA.

When am I able to telework or work from home?

When your employer allows it. If your employer does not allow teleworking, then you must go to your place of work if you are an essential business. Your employer is not required to allow teleworking.

If you are unable to telework, are you entitled to paid sick leave or expanded family and medical leave?

Yes. If your employer allows teleworking but you are unable to telework for one of the qualifying reasons for paid sick leave or family and medical leave listed in the question above, then you are entitled to the same provisions.

Mansell Law is an employment law firm with offices in Columbus, Ohio and New York, City. Contact us for questions or violations.

Related Articles

What Does Workplace Harassment Look Like in 2021?


by Victoria E. Langley

The COVID-19 pandemic reshaped the U.S. workforce. But has it changed harassment on the job?

Workplace Harassment in 2021

WATCH: Best Lawyers Discusses COVID-19 & Education


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to discuss how COVID-19 will change public, private, and higher education in the country and the legal considerations people will have to consider

COVID-19 Panel: Education

WATCH: Best Lawyers Discusses COVID-19 & Sports Franchises


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to discuss the legal challenges sports franchises face as the reality of reopening looms closer.

COVID-19 Panel: Sports Franchises

WATCH: Best Lawyers Discusses COVID-19 & Family Law


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about problems that arise for family law during COVID-19.

COVID-19 Panel: Family Law

WATCH: Best Lawyers Discusses COVID-19 & Business Liability


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about business liability concerns as the economy opens back up.

COVID-19 Panel: Business Liability

WATCH: Best Lawyers Discusses COVID-19 & Rental Agreements


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about a general approach to “the rental” market and what happens if tenants can’t pay rent in May.

COVID-19 Panel: Rental Agreements

Is This a Once in a Lifetime Opportunity to Refinance Right Now?


by Roy D. Oppenheim

If you wish to stay in your current home and refinance or buy a new home, now is the time

Should You Buy a Home During This Pandemic?

Know This Contract Clause During the COVID-19 Pandemic


by Roy D. Oppenheim

Force Majeure clauses are common in most contracts and can prove to be invaluable when determining whether one party’s performance is truly outside of that party’s control.

What is Force Majeure?

A Legal Guide for Businesses During COVID-19


by Roy D. Oppenheim

Oppenheim Law creates a useful guide for problems small to medium-sized businesses may face during this time of uncertainty.

COVID-19 Legal Information for Businesses

Connecticut’s “Clean Slate” Act Could Bolster State Workforce


by Gregory Sirico

Best Lawyers weighs in on Connecticut's newly enacted Clean Slate Act and how it's changing the state's employment landscape.

Suited man ascending staircase to overexposed exit

Big Updates in the Big Apple


by Nina M. Roket and Thomas D. Kearns

A Post-COVID-19 update on the commercial market for landlords, building investors and retail developers in New York.

Abstract skyscrapers and buildings in multi-color

Infrastructure Restructure


by David A. Lum

Developers are embracing creativity and ESG to continue their real estate projects amidst a backdrop of inflation, supply chain demands and pipeline issues.

Two figures standing in construction site

Does the Crystal Ball Predict a Fall?


by Kathleen Bernardo

In the post-pandemic climate, economists are making many predictions about what’s to come for the housing market. But one real estate lawyer with decades of experience says that this reset was crucial and not necessarily indicative of the doom and gloom we thought we were facing.

Multi-colored houses with purple backdrop

Employment Alterations


by Ariel Beverly

As corporate America continues to grapple with pandemic-induced employment shifts, companies are still facing wage-hour compliance issues. Here’s some advice for navigating a post-pandemic work world.

Post-Pandemic Employment Difficulties

The Employment Pandemic


by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky