On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA) which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic. “The Emergency Paid Sick Leave Act (EPSLA), entitles certain employees to take up to two weeks of paid sick leave. “The Emergency Family and Medical Leave Expansion Act” (EFMLEA), which amends Title I of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA), permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19. On March 27, 2020, President Trump signed into law the Coronavirus Aid,Relief, and Economic Security Act, Public Law 116-136 (CARES Act), which amends certain provisions of the EPSLA and the provisions of the FMLA added by the EFMLEA. The law went into effect on April 1, 2020. The Department of Labor promulgated regulations on April 1, 2020.
In general, the FFCRA requires covered employers to provide eligible employees up to two weeks of paid sick leave at full pay, up to a specified cap, when the employee is unable to work because: the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis. The FFCRA also provides up to two weeks of paid sick leave at partial pay, up to a specified cap, when an employee is unable to work because of a need to care for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; because of a need to care for the employee's son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons; or because the employee is experiencing a substantially similar condition, as specified by the Secretary of Health and Human Services. The FFCRA also requires covered employers to provide up to twelve weeks of expanded family and medical leave, up to ten weeks of which must be paid at partial pay, up to a specified cap, when an eligible employee is unable to work because of a need to care for the employee's son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.
The law applies to private employers with less than 500 employees and includes state and local governments. The law offers, although does not mandate, an exemption for “health care providers” and “emergency responders” as defined by the Act. An emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder necessary for that State's or territory's or the District of Columbia's response to COVID-19.
While the law does not mandate that towns and local governments exclude emergency responders from coverage, the law permits an exclusion so as to encourage care and emergency response to the COVID-19 crisis.
While the regulations provide a broad interpretation, the exclusion should be applied only to the services that are needed for the response to COVID-19. Additionally, an overriding policy should be to reduce the spread of the virus and disincentivize employees to come to work sick or after having been exposed to the virus. Additionally, depending upon the need for leave, anti-discrimination laws, non-covid provisions of the FMLA, state mandated sick leave or obligations under a collective bargaining agreement may govern.