COVID-19 has complicated most things that have to do with business, and that includes the
rules about granting sick leave to employees. You may already know about the Family Medical
Leave Act (FMLA), but what you may not have heard is that on April 1st of this year, the federal
government enacted another temporary rule just for COVID-19: The Families First Coronavirus
Response Act (FFCRA).
What’s the Difference Between FMLA and FFCRA?
While there are many similarities, there are differences that adapt it to the situation we
currently find ourselves in. Both the FMLA and FFCRA could be applicable to your workplace at
the same time. While it’s nothing to tear your hair out over, it’s also important that you, as a
business owner, know what your responsibilities are under both laws.
For the FMLA, the first thing to find out is whether you are a covered employer. Covered
business owners have 50 or more employees that work 20 or more weeks within the current or
previous year. That goes for joint employers as well as the successor to a previous employer, so
if you recently acquired another company and haven’t changed anything substantial about the
business, you would be covered.
If you are covered, you will need to provide eligible employees with up to 12 weeks of unpaid
leave in one year, for a few specific reasons. Those are:
● The birth and care of the employee’s newborn child;
● The care of their newly placed adopted or foster child;
● Care for an immediate family member (spouse, child, or parent) with a serious health
● The inability to work due to a serious health condition of their own.
Employees also have to meet some criteria to qualify for leave under the FMLA. Assuming you
are a covered employer, they need to have been employed at your company for 12 months,
and had 1,250 hours of service during the 12-month period immediately before they take the
leave. When they return from leave, they’ll need to be restored to their original job, or an
equivalent job at the same rate of pay, benefits, and other employment conditions.
How to Avoid FMLA & FFCRA Fines
If you’re a covered employer, be sure to post a notice that explains the rights and
responsibilities under the FMLA, or you could be fined. It’s also wise to include information
about FMLA, and how it relates to the way your company provides sick leave.
For FFCRA, covered employers are similar to those covered under FMLA, in that they have
fewer than 500 employers, but there are some conditions that might make your business
exempt. You might be able to get an exemption if you have fewer than 50 employees and the
employee asks for leave because childcare isn’t available due to COVID-19.
Also, you need to determine if one of three other conditions is met: providing sick leave would cause the
business’s expenses to exceed its revenue; the employee’s not being there would pose a risk to
the financial health because of their skills, knowledge, or duties; or, there’s no one else
available to do the work that would keep your business functioning at minimal capacity.
What Does the FFCRA Cover?
Here are what the FFCRA covers, and the amount of leave time and pay that it makes available
to employees who take it.
● Two weeks of paid sick leave at the employee’s regular rate of pay when the employee
cannot work due to being quarantined with COVID-19 symptoms, and seeking a
● Two weeks of paid sick leave at two-thirds their regular rate of pay because they need
to care for a quarantined person, or a child whose school or care provider is closed
because of COVID-19;
● Up to 10 additional weeks of paid expanded family and medical leave at two-thirds their
regular rate of pay to care for a child whose school or care provider is closed because of
COVID-19. For this one, they’ll have to had worked at your company for more than 30
Protect Yourself and Your Employees
So, what if you notice COVID symptoms in one of your employees? It’s a good idea to have a
plan in place before that becomes an issue. In some cases, the leave could be FMLA-protected,
and you can require them to use paid leave. You can also set up your own policy over whether
employees can be sent home, as long as it isn’t discriminatory and doesn’t violate local laws.
You can ask for a doctor’s note, but keep in mind that it may be difficult for them to get in the
midst of a pandemic, when medical resources might be spread thin. (Of course, this also
depends on whether there’s currently an outbreak where you live.)
If you are unsure of whether or not you are a covered employer for either the FMLA or FFCRA,
we can help you make sense of how these laws apply to your business and how you can
prepare to accommodate your employees, if necessary.
At Jones Legal, P.C., we offer a complete spectrum of legal services for businesses and can help
you make the wisest choices on how to deal with your business throughout life and in the event
of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business,
which includes a review of all the legal, financial, and tax systems you need for your business.