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Paid Leave Due to COVID-19: The FFCRA

The recently passed Families First Coronavirus Response Act (FFCRA) gives paid leave to many employees who are impacted by COVID-19. Benefits may apply to those who are sick, caring for others who are sick, or caring for children out of school or daycare due to COVID-19. The act also reimburses employers through a tax credit.

What is the Families First Coronavirus Response Act (FFCRA)?

The Families First Coronavirus Response Act (FFCRA) is a new law that:

1) Creates a new type of mandatory COVID-19-related paid leave (called Emergency Paid Sick Leave), and

2) Expands the existing Family Medical Leave Act (FMLA) to include paid leave for COVID-19-related child care due to closed schools and daycares (called Expanded Family Medical Leave).

The FFCRA treats these two categories of leave slightly differently. For example, taking off work to care for a healthy child who is out of school due to COVID-19 counts toward limits in the FMLA, while taking off work because you or someone else is sick with COVID-19 does not.

Does my employer have to give me paid sick leave due to COVID-19?

In general, employers with less than 500 employees have to give paid sick leave to employees who cannot work due to COVID-19. This includes most government employers as well, though there may be limitations. Federal employers, for example, are likely to be exempt because different laws cover federal employee leave.

Some types of businesses may be exempt, and businesses with less than 50 employees may apply for an exemption to the 12-week child care provision. Employers may choose to exclude health care providers and emergency responders from paid leave under the FFCRA. Contact your human resources department if you are unsure if the FFCRA applies to your employer.

Note that the FFCRA only gives paid leave when an employer has work for an employee to do. The FFCRA does not give paid leave to employees who cannot work due to closings or layoffs.

To what dates does the FFCRA apply?

The FFCRA can give you paid leave for work missed from April 1, 2020 to December 31, 2020.

How much paid leave does the FFCRA give workers?

The FFCRA provides three levels of paid leave if you cannot work due to COVID-19:

Two weeks fully paid leave up to $511 per work day ($5,110 total). You qualify for this level if:

  • You are subject to a government quarantine or isolation order, or
  • Your health care provider told you to self quarantine, or
  • You have COVID-19 symptoms and you are seeking a diagnosis.

Two weeks two-thirds paid leave up to $200 per work day ($2,000 total). You qualify for this level if:

  • You are caring for a person who is subject to a government quarantine or isolation order, or
  • You are caring for a person whom a health care provider has told to self-quarantine.
  • Also: In the future, the Department of Health and Human Services or the Department of Labor may add situations that will allow people to take two weeks of two-thirds paid leave.

Twelve weeks two-thirds paid leave up to $200 per work day ($12,000 total). You may qualify for this level if:

  • You care for a child because their school or daycare is closed due to COVID-19, and
  • You have worked for your employer for at least 30 days.

 

A government order prevents me from going to my workplace. Does that mean I can’t work due to COVID-19?

Pretty much any government order that prevents you from going to work due to COVID-19 can qualify you for paid leave so long as 1) your employer still has work for you to do, and 2) you cannot do your job due to the order (i.e., teleworking is not available). This includes stay at home orders, shelter in place orders, isolation orders, quarantine orders, or any other similar orders that prevent you from working. This also includes orders at the federal, state, and local level. 

Note that if your employer has no work for you to do because it closed due to a government order, you do not qualify for paid leave under the FFCRA. You should apply for unemployment in this situation.

 

I need to take off work to care for someone. Do I have to be related to that person to get paid leave under the FFCRA?

To get paid leave to care for someone who has COVID-19, you need to be closely related to the person, live with the person, or have a close relationship with the person where you would be expected to care for them if they need it. The person must actually need you to care for them.

To get paid leave to care for a child who is out of school or daycare due to COVID-19, you must be the child's parent, stepparent, guardian, or person who normally provides and cares for the child.

I got laid off or furloughed due to COVID-19. Do I get paid leave, since it is the fault of COVID-19 that I cannot work?

No. The FFCRA only gives paid leave when an employer has work that the employee could perform if not for COVID-19.

If you have been laid off or furloughed, you may apply for unemployment benefits.

Update: A recent federal court decision struck down several parts of the FFCRA, including the part that says furloughed employees are not eligible for paid leave. It is unclear how this might impact worker pay, but workers who are furloughed due to COVID-19 may now be eligible for pay under the FFCRA.

What if my hours are reduced due to COVID-19?

The FFCRA only gives you paid leave for missing work your employer has available. The FFCRA does not give you paid leave for working fewer hours due to reduced employer operations. 

You may be able to apply for unemployment benefits if your employer cuts your hours.

 

I can work remotely but I cannot keep to my normal schedule. Do I still qualify for paid leave under the FFCRA?

No. If you can work, the FFCRA does not give you paid leave. The paid leave is only for:

  • Those who are too sick to work, or
  • Those who cannot work because they are caring for someone else and their employer cannot accommodate their new schedule or home work environment 

Note that even if your employer allows employees to work remotely, you can get paid leave if your employer cannot accommodate your schedule due to COVID-19.

 

I already get paid leave through my employer. Does the FFCRA help me at all?

Yes. You can take at least two weeks paid leave under FFCRA without using your normal work leave. If your employer allows, you may use your normal work leave to make up any reduced pay under the FFCRA. 

If you take off work to care for a child who is out of school or daycare due to COVID-19, your employer may require you to use your normal paid leave after the first two weeks. Your employer must give you your full pay for any normal paid leave used.

Note that your employer cannot force you to use your normal sick leave if you yourself are not sick. 

 

I normally get overtime at my job. Will my FFCRA paid leave include overtime?

Yes, but with restrictions. The FFCRA will pay you for up to 80 hours for every two week period. This includes any overtime that you would normally get, but is capped at 80 hours total.

For example, say you normally work 50 hours a week, including 10 hours of overtime. If you take off two weeks due to COVID-19, you would get paid 70 hours at the normal rate and 10 hours of overtime. That is, you would get paid for all 50 hours for the first week you miss, including 10 hours of overtime, but only for 30 hours of the second week.

I got sick and took off work, but I never went to the doctor. Does the FFCRA apply to me?

Probably not. You can take leave under the FFCRA to seek a COVID-19 diagnosis, but if you never tried to get a diagnosis then the FFCRA does not give you paid leave. 

I went to the doctor with COVID-19 symptoms, but I did not have COVID-19. Can I still take FFCRA paid leave?

You can take paid leave for the time it took you to get a diagnosis for your COVID-like symptoms. However, you cannot take paid leave under the FFCRA for the time you were sick after your non-COVID-19 diagnosis. 

My child’s school has gone to online learning. Does that count as being closed?

Yes. If the child has to stay home due to COVID-19, then the school is closed for purposes of the FFCRA. You can get paid leave if having to care for the child prevents you from working (including telework). This includes virtual-learning days as well as actual school closures, so long as the child is home due to school policy and not only due to the parents' choice.

Does summer vacation count as a school closure?

No. The FFCRA only applies when school is closed due to COVID-19. It does not apply to normally scheduled school closures.

However, if summer child care is unavailable due to COVID-19, the FFCRA may provide you with paid leave. This includes COVID-related closures of daycare,  summer school, summer camps, or daytime summer programs that your child would normally attend.

I have an adult child with a disability who needs care that is unavailable due to COVID-19. Does the FFCRA apply to us?

Yes. The FFCRA treats adult children who need care the same as minor children for purposes of giving you time off to care for them.

Can I use my own sick leave benefits to get paid in full, instead of just the partial payments that I would get under the FFCRA?

Yes, if your employer agrees.

Also, after two weeks, your employer may require you to use your normal employer-provided leave at the same time as your FFCRA leave. Your employer must pay you in full for any normal paid leave you take.

I am a part time employee. Do I get paid leave as well?

Yes, the FFCRA gives paid leave to part time employees. Your paid leave is based on the number of hours you typically work. (See the Department of Labor's FAQ, Question 5.)

I am an independent contractor. Do I get paid time off under the FFCRA?

No. The FFCRA's leave provisions do not apply to independent contractors. However, you may be able to get a tax credit for time taken off work due to COVID-19. See the next question.

 

I am self-employed. Is there any way I can get paid time off due to COVID-19?

From Texas RioGrande Legal Aid:

Self-employed workers can now get a tax credit to cover some time off related to COVID-19. 

Eligible self-employed workers can get a tax credit of up to 10 days of their full average pay (capped at $511 per day) if unable to work for the following reasons: 

  • You are under a quarantine or isolation order related to COVID-19; 
  • You have been advised by a health care provider to self-quarantine because of concerns related to COVID-19; or 
  • You are having symptoms of COVID-19 and are seeking a diagnosis. 

Eligible self-employed workers can get a tax credit of up to 67% of their average pay for 10 days (capped at $200 a day) if unable to work for the following reasons: 

  • You are caring for someone who is under a quarantine order or has been advised to quarantine by a health care provider; 
  • You are caring for your child whose school is closed or childcare provider is unavailable; or 
  • You are experiencing any other substantially similar condition related to COVID-19 as defined by law. 

Eligible self-employed workers can get an additional tax credit of up to 67% of their average pay for 50 days of their average pay (capped at $200 a day) if they are unable to work because of the need to care for their child if their school is closed or childcare provider is unavailable because of COVID-19. 

These tax credits are refundable. That means that self-employed workers can get money back if their tax credit is bigger than the tax owed. 

You should make sure to keep records of your pay during the year to show at tax time that you are self-employed and what your average pay was. (Your average pay will be calculated by taking your net self-employment earnings from the whole tax year and then dividing that amount by 260.)

You should also keep a record showing why you qualify for the tax credit (for example, if you are under an isolation order, you should keep a copy of that order). 

You can contact an attorney for more advice. 

See also the IRS' FAQ on how small businesses, include self-employed persons, can get the FFCRA tax credit as part of their quarterly filings.

I work irregular hours. How are my paid leave hours calculated?

The number of paid leave hours you get is calculated as an average of the past six months employment. If you have worked for your employer for less than six months, paid leave is calculated based on your average weekly hours during your employment. (See the Department of Labor’s FAQ: Question 8.)

If you are a seasonal worker, the off season when you were not working does not count toward your average hours. (See the Department of Labor’s FAQ: Question 75.)

If you work a lot of overtime, the overtime will be included in your paid leave up to 80 work hours total for every two week period.

Do I have to take all my FFCRA leave at once?

Not necessarily. If you need to spread out leave due to work and care schedules or separate qualifying events, you may work with your employer to do so. Leave for teleworkers is more flexible. On-site workers must take leave in a minimum of one-day increments. 

What if I run out of paid leave under the FFCRA? Can I still take unpaid leave under the Family Medical Leave Act’s non-COVID-19 provisions?

You can still take leave under the Family Medical Leave Act if you qualify. However, your employer can choose not to pay you for this extended leave.

Also note that any leave you take off to care for a child who is out of school or daycare due to COVID-19 counts toward the FMLA's 12-week limit. Taking off two weeks under the FFCRA because you have COVID-19, have to care for someone who has COVID-19, or have to obey a stay-at-home order does not count toward the FMLA's 12-week limit.

What if I have already taken off work under the Family Medical Leave Act? Can I still get paid leave under the FFCRA?

Yes. You can still take two weeks of paid leave if you are sick, are caring for someone else who is sick, or are obeying a stay-at-home or quarantine order. 

You can also still take leave to look after your child who is out of school or daycare so long as you have some Family Medical Leave Act (FMLA) leave leave left. 

However, any leave you previously took off under the FMLA would count against the 12 weeks the FFCRA gives to take care of a child who is home due to COVID-19. That’s because under the FFCRA, time you take off to care for a child out of school due to COVID-19 counts as FMLA time. So if you took three weeks off under the FMLA for other reasons in the past twelve months, you would have nine weeks of paid leave remaining to care for a child out of school due to COVID-19. This is true whether or not you were paid for the prior leave taken under the FMLA.

Also note that any time you take off work to care for a child who is out of school due or who lacks daycare due to COVID-19 is time you cannot take off for other FMLA reasons in the future.

 

Can I get paid leave under the FFCRA and unemployment benefits at the same time?

Not generally. You cannot get both at the same time for the same work missed. However, if you are only getting part-time paid leave under the FFCRA because your hours were reduced, you may be able to get unemployment benefits for the hours you are missing. 

I have a disability that puts me at higher risk for COVID-19. Am I covered?

The FFCRA does not cover your disability. However, you may be able to get a reasonable accommodation under the Americans with Disabilities Act. Texas RioGrande Legal Aid says that you have the right to a reasonable accommodation unless the employer can show the accommodation would create an undue hardship (meaning it would be overly expensive or difficult for that employer). 

A reasonable accommodation could include working from home, or a reasonable period of unpaid leave. If more than one accommodation could effectively address your needs, you might not be able to choose which accommodation you receive at work, however the accommodation your employer chooses must effectively address the disability. 

If you request unpaid leave as a reasonable accommodation, you should tell your employer when you plan to return to work. It may be more difficult requesting unpaid leave as an accommodation than requesting to work from home, since it is unclear how long this pandemic will last and requesting indefinite leave is usually not a reasonable accommodation under the ADA in Texas. 

My employer will not give me paid leave under the FFCRA, but I think they are supposed to. What can I do?

If you believe that your employer is violating your rights under the FFCRA, the Department of Labor encourages you to try to resolve your concerns with your employer. However, whether or not you talk to your employer, you may call the Department of Labor’s Wage and Hour Division at 1-866-4US-WAGE (1-866-487-9243) or visit www.dol.gov/agencies/whd. Your call will be directed to the nearest office for assistance to have your questions answered or to file a complaint. If you have a private employer with 50 or more employees, you also may file a lawsuit against your employer directly without contacting Wage and Hour Division.

Can I get my same job back when I go back to work?

Generally, yes. In most cases, your employer has to give you the same or equivalent job. However, there are exceptions:

  • You can still be laid off for legitimate business reasons while on leave.
  • You are a key employee who is among the highest-paid 10 percent of all of the employer’s employees within 75 miles.
  • Your employer has less than 25 employees and you took leave to care for a child who was home due to COVID-19. If you lose your job for this reason, it has to be because the job no longer exists. If the job becomes available again within 12 months, the employer has to try to contact you to allow you to return.

 

I am an employer and I cannot afford to pay employees for sick leave. What can I do?

Your business can get full reimbursement through a refundable tax credit. This tax credit covers 100% of the sick leave your employees take under the FFCRA.

How do I calculate paid leave in different situations?

For more details on how to calculate paid leave in different situations, read the Department of Labor’s FAQ:

  • Question 5: How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?
  • Question 6: When calculating pay due to employees, must overtime hours be included?
  • Question 7: As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?
  • Question 8: What is my regular rate of pay for purposes of the FFCRA?
  • Question 75: As an employer, how much do I pay a seasonal employee with an irregular schedule for each day of paid sick leave or expanded family and medical leave that he or she takes?
  • Question 80: How do I compute the number of hours of paid sick leave for my employee who has irregular hours?
  • Question 81: How do I compute the number of hours I must pay my employee who has irregular hours for each day of expanded family and medical leave taken?
  • Question 82: How do I compute my employee’s average regular rate for the purpose of the FFCRA?
  • Question 83: How do I compute the average regular rate of my employee who is paid a fixed salary each workweek?

Additional Information

The Department of Labor has an in-depth FAQ with additional information. You can find the FAQ at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

The Department of Labor also has a summary of the FFCRA for employees at: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.

Lone Star Legal Aid wrote a summary of the FFCRA that you can download as a PDF

Texas RioGrande Legal Aid answers additional questions about what to do if you need to take off work because of the coronavirus: https://www.trla.org/taking-time-off-work-covid-19-response.