When FFCRA Does Not Apply Unemployment Insurance May Come Into Play

There are so many questions relating to employment, leave, legislation, and so much information competing for our attention during the COVID-19 pandemic. How are we expected to understand a complex bill like the Families First Coronavirus Response Act when our individual situations are so unique and our employers all so different? And similar legislation has been passed or is on the way to confuse us even more!

First start with our prior article which tells you who is eligible for EMERGENCY FAMILY & MEDICAL LEAVE and EMERGENCY PAID SICK LEAVE, and under what circumstances and how much employers must pay, and how they get tax credits if they do: https://www.fuoco.com/component/content/article/548-put-families-first-coronavirus-response-act-to-work-for-you.

This article focuses more on who might not be eligible, and what avenues are open to you. Here are some frequently asked questions – the answers may surprise you.

1. If my employer had to close before April 1, 2020, which is the effective date of the FFCRA, can I still get paid sick leave or expanded family and medical leave? No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because there is no work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. Remember that if your employer is paying you through a paid leave policy or State or local requirements, you will not be eligible for unemployment insurance.

2. What happens if my employer closes my worksite while I am out on paid sick leave or expanded family and medical leave already? After April 1st, if your employer closes while you are on paid sick leave or expanded family and medical leave, you must be paid for any paid sick leave or expanded family and medical leave you used prior to the closing. However, as of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

3. If my employer is open, but furloughs me on or after April 1, 2020, when FFCRA is effective, can I receive paid sick leave or expanded family and medical leave? No. If your employer furloughs due to lack of work, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.

4. If my employer closes our place of business on or after April 1, 2020 when FFCRA begins, but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave? No, not while your worksite is closed. If your employer closes the worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted or applicable.

5. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because there is a lack of work, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19. You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced.

6. May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave? No. If your employer provides you paid sick leave or expanded family and medical leave, generally you are not eligible for unemployment insurance. However the DOL recently clarified additional flexibility to the States to extend partial unemployment benefits to workers whose hours or pay have been reduced.

7. If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. You generally must continue to make any normal contributions to the cost of your health coverage. If you do not return to work at the end of your leave, check with your employer, you may be able to continue your coverage under COBRA.

8. May I use paid sick leave and expanded family and medical leave together for any COVID-19 related reasons? No. The Emergency Family and Medical Leave Expansion Act applies only when you are on leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. However, you can take paid sick leave under the Emergency Paid Sick Leave Act for numerous other reasons.

9. If I work for a small business with fewer than 50 employees, are they exempt from the requirements to provide the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave? An employer or small business, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing:
(a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, and
(b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:
• The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
• The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Got more questions? More answers here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Contact Us: This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely check with their employment attorney to update their time off and sickness policies to reflect the changes imposed by the Act. Requirements are subject to a 30-day non-enforcement period for good faith compliance efforts. To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released soon. How can our professionals help YOU? Send your questions to This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Check our homepage for additional Coronavirus updates www.fuoco.com.