Employee Leave: The FMLA and FFCRA

With all the chaos and changes wrought by the coronavirus pandemic, it’s understandable if employers and employees alike have some questions about leave of absence and time away from work. The Family Medical Leave Act (FMLA) and Families First Coronavirus Response Act (FFCRA) both require employers to provide job-protected leaves of absence, but for different reasons and different time frames. In 2020, employers received a payroll tax credit for this leave that their employees took, and this tax credit remains in place through March 31, 2021, but employers are no longer required to provide the leave after December 31, 2021.

With the pandemic hitting businesses and workforces in so many ways, it’s important to know how employees can get the time off work they need to take care of themselves and their families and still keep their jobs.

What’s the Difference Between FMLA and FFCRA?

The Family Medical Leave Act provides employees who meet eligibility requirements up to 12 workweeks of unpaid leave without losing their jobs. FMLA leave is paid leave only under the Emergency Family and Medical Leave Expansion Act, and when it is more than 10 days and is taken to care for children whose school or childcare arrangements are unavailable because of COVID.

• FMLA leave can be taken only for specific family and medical reasons do not have to be taken all at once in a continuous 12-week timeframe, with no loss of group health coverage.
• FMLA leave can be taken to have and take care of a new baby or adopted or foster child, care for a close family member with a serious illness, because of the employee’s serious health condition, or because of caring for a military family member’s needs.
• FMLA also provides 26 workweeks of leave for close family members to care for a covered servicemember who is seriously injured or ill.
• FMLA leave must be taken in a single year although it doesn’t have to be taken continuously for the whole 12 weeks; it can be taken in blocks of time or in single days for covered reasons.
• Covered employers who are subject to FMLA are private-sector employers with 50 or more employees, public employers regardless of how many employees, and public or private elementary and secondary schools regardless of how many employees.

Learn more about FMLA in one of our recent blog posts about FMLA and the holidays.

The Families First Coronavirus Response Act provides up to 80 hours of paid sick leave for employees impacted by COVID quarantine or active COVID infection. FFCRA also provides paid sick leave for employees unable to work because of the need to care for someone in quarantine, or for a child when childcare or school is closed due to COVID, and may be extended due to COVID conditions. This extended leave can be up to 12 weeks for full-time employees. This is federally protected leave. Find out about what can happen if employers deny FFCRA leave in one of our previous blog posts.

Can an Employee Take Expanded FMLA Leave Under the FFCRA and Regular FMLA Leave Back-to-Back?

Emergency paid sick leave under FFCRA is a federal paid leave entitlement that does not eliminate other employee benefits; it is in addition to other forms of paid or unpaid employer-provided benefits. For this reason, employers can’t require employees to use their employer-sponsored benefits before taking FFCRA. This means that employees may use FFCRA leave for qualifying reasons to extend their time away from work.

Employers need to keep in mind also that FFCRA leave use isn’t affected by prior use of FMLA leave. Leave for covered reasons is still allowed for two weeks of emergency paid sick leave even if employees have used 12 weeks of FMLA leave.

Remember State and Local Leave Laws

The Society for Human Resource Management (SHRM) reminds employers that “Some states and localities have created their own COVID-19-related leave entitlements that may be more generous than those under federal law” and suggests knowing the local laws in the area(s) your employees work for compliance.

Even though FFCRA leave is extended through March 2021 and may not be further extended, SHRM also reminds employers to keep in mind their obligations under the Americans with Disabilities Act (ADA). Especially in the case of employees with COVID-related lingering symptoms, those partially recovered but left with “long haul” medical issues, accommodations may still be needed and required under ADA.