U.S. DOL Issues New Guidance on the Families First Coronavirus Response Act

March 31, 2020 | Kenneth A. Novikoff | Brian S. Conneely | John K. Diviney | Tamika Hardy | Keegan B. Sapp | Employment & Labor

The Families First Coronavirus Response Act (FFCRA) will take effect on April 1, 2020, and will require all private employers with 499 or fewer employees to provide paid sick leave and emergency family leave to qualified employees. The FFCRA will apply to a broader set of individuals than New York’s paid sick leave law passed in mid-March. Under certain circumstances, an employer can claim a tax credit for providing paid sick leave for qualifying COVID-19 related reason. Employers should consult our prior articles for a list of qualifying reasons an employee can seek leave under the FFCRA or New York paid sick leave.

Although both laws will provide paid sick time for employees ordered to quarantine, the FFCRA also provides paid sick leave for employees advised by a health care provider to self-quarantine due to concerns related to COVID-19. The FFCRA, defines a health care provider as a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for FMLA purposes.

Requesting Leave

The United States Department of Labor (DOL) has provided some guidance as to how employees may avail themselves of the benefits under FFCRA and the documents employers should maintain in order to gain the tax credit.

An employee must support the leave request with a copy of the quarantine or isolation order, or written documentation from a health care provider advising the individual to self-quarantine. The documentation should include the employee’s name, the qualifying reason for the leave, and the reason the employee is unable to work or telework. Additionally, if the qualifying reason is to care for a child, the employee should provide documentation that the minor child’s normal caregiver is unavailable due to a COVID-19 related reason (e.g., order requiring the school and/or daycare to close).

Employers who wish to avail themselves of the tax credit for providing paid leave under the FFCRA should keep all documentation identifying the qualifying reason for the need for leave. The U.S. DOL recommends that employers consult the Internal Revenue Service (IRS), its applicable forms, instructions, and information for the process to claim this tax credit, including any necessary supporting documentation.

Expansion of Unemployment Insurance Benefits

The Coronavirus Aid, Relief and Economic Security Act (CARES) enacted March 27, 2020. revised certain provisions of the FFCRA and expanded unemployment insurance benefits for employees laid off due to an eligible COVID-19 related reason. CARES provides an additional $600 per week payment, referred to as “Federal Pandemic Unemployment Compensation,” to recipients of unemployment insurance for a period of up to four months. An employee will be eligible for the amount of unemployment benefit the individual would otherwise be entitled to under applicable federal or state law plus the amount of Federal Pandemic Unemployment Compensation ($600).

In addition, CARES provides an additional 13 weeks of unemployment compensation, through December 31, 2020, to all individuals who otherwise would be ineligible for such compensation because they have exhausted all rights to regular unemployment compensation under applicable state or federal law in this benefit year.

Additional Clarification

The DOL’s new guidance provides clarification for the following issues:

  • the small business exemption for businesses with fewer than 50 employees
  • the definition of part-time employees and computations of relief amounts for which part-time employees may be eligible
  • the amounts, types and lengths, for paid sick leave and expanded paid family medical leave
  • permissible intermittent paid leave provisions
  • the impact of a work facility’s closure, furloughs and reduction of hours
  • the relationship between paid leave under the FFCRA and unemployment benefits
  • the use of, and relationship with, existing paid time-off provided by employers and covered paid leave under FFCRA.

If you have any questions regarding the Families First Coronavirus Response Act, or any other employment laws and issues, please contact an attorney in the Employment & Labor Practice Group.

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