Families First Coronavirus Response Act

Key Highlights:

Effective April 1, 2020 – December 31, 2020, the law provides up to 80 hours of paid sick leave for employees impacted by coronavirus; and allows employees to use FMLA leave with 2/3 pay if they need to care for a child whose school or childcare is closed due to COVID-19.

Potential Exception:

“[A]n employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.”

Emergency Responder:

“[A]n emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19”, and includes:
  • Military or national guard
  • Law enforcement officers
  • Correctional institution personnel
  • Fire Fighters
  • Emergency medical services personnel
  • Emergency medical technicians, paramedics
  • Emergency management personnel
  • 911 operators

AFF Response to Emergency Exception:

Nearly all public employers are providing these benefits to their public safety employees, but retaining the ability to deny the usage of such time off in cases of staffing shortages or other emerging situations. Thus, your employer should provide these benefits, subject to management discretion on the utilization of such leave. If you are unsure if your employer is providing these benefits to your public safety members, contact AFF immediately.

Qualifying Reasons for Leave Usage:

Sick Leave Entitling Employee to paid time off:

Employee is unable to work (or telework) due to a need for leave because:
  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described above or has been advised by a health care provider as described above.
  5. The employee is caring for a son or daughter if the child’s school or daycare has been closed or the child’s child care provider is unavailable due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. However, be aware, if your reason for time off is numbers 4 through 6 above, your pay is limited to 2/3 of your rate. See chart below.

Sick Leave Entitling Employee to additional FMLA Leave:

The FMLA currently provides up to 12 weeks of unpaid leave; however, the new law provides up to 10 weeks of paid leave.

Qualifying Reason for Emergency FMLA leave:

The employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. Be aware, this leave does not expand total 12-week FMLA entitlement.

Miscellaneous Rights (relative to existing benefits)

  • These new benefits are in addition to any other leave provided by the employer.
  • Employees may use emergency sick leave before other leave.
  • Cannot require employees to exhaust other leave
  • Employees may substitute existing paid leave for first 10 days of unpaid leave
  • Unclear if an employee can decline to use emergency sick leave to cover the first 10 days Employees using these news leaves who don’t receive full pay have the option of using other paid leave to make up the difference to receive full pay
  • Cannot require employees to do this though.
  • Sunsets December 31, 2020
  • No payout on termination
  • No carryover to next year

Employer Prohibitions:

  • No discrimination or retaliation.
  • Employers may not require employees who take leave to find a replacement for shifts.

Reinstatement Rights:

  • Same as regular FMLA (reinstate to same or equivalent position)
  • Not required if employment would have terminated for independent reasons