FFCRA regs clarify when employees aren't eligible for emergency paid leave

The Families First Coronavirus Response Act (FFCRA), passed in March, established two forms of paid leave for employees who need to take time off for COVID-19 reasons between now and December 31, 2020. The U.S. Department of Labor (DOL) subsequently published regulations to help you understand and implement the FFCRA in your workplaces. Not all employees are covered, however, as the DOL's guidance explained.

First, what FFCRA covers

The FFCRA offers emergency paid sick leave (EPSL) and emergency family and medical leave (EFML) to help working families during the COVID-19 pandemic:

• Eligible employees can take up to two weeks of EPSL for certain coronavirus-related reasons. The amount of pay they'll receive, up to a certain maximum per day, depends on the reason they take the leave (for a personal health situation or to care for others).
• Employees also can take up to 12 weeks of EFML, but only if they are unable to work because they need to care for a son or daughter whose school or daycare provider is closed or unavailable.

The first 10 days (two weeks) of EFML are unpaid, but employees may substitute PSL (at two-thirds pay) or accrued paid time off (PTO) during that time. For the remaining 10 weeks, pay is based on two-thirds of the employee's regular rate, up to $200 per day.

Who isn't covered

The FFCRA covers private employers with fewer than 500 employees but might allow smaller employers to deny leave if providing it would "jeopardize the viability of the business as a going concern." How can you invoke that exemption?