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How Does the CARES Act Impact the FFCRA?

Introduction to the Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Act

On March 18, 2020, President Donald Trump (“President Trump”) signed the Families First Coronavirus Response Act (“FFCRA”) into law. Among other things, the FFCRA requires certain employers to provide its employees with paid leave for qualifying reasons related to COVID-19. This leave is permitted under two specific acts: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which amended the Family and Medical Leave Act of 1993 (“FMLA”).

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. In addition to providing economic stimulus packages to small businesses and individuals, the CARES Act amended the FFCRA. Most of the amendments were only slight corrections to the FFCRA, but there were some substantive amendments.

What amendments were made to the FFCRA?

Provided here are some, but not all, of the notable FFCRA amendments made by the CARES Act. First, the CARES Act amended the FFCRA to expand the definition of “eligible employee” for the EFMLEA. Originally, the FFCRA only defined an “eligible employee” as an individual who had been employed for more than 30 calendar days leading up to the employee’s need for qualifying leave. Under the CARES Act, an “eligible employee” for EFMLEA now includes an employee who (1) was laid off on or after March 1, 2020; (2) was subsequently rehired by the same employer; and (3) had worked for at least 30 of the preceding 60 days before the employee was laid off. This means that eligible re-hired individuals have immediate access to EFMLEA leave upon return to work, without applying the 30 day wait period. An employee rehired after December 31, 2020, will not be entitled to FMLA leave without meeting the original FMLA eligibility requirements.

Second, the CARES Act clarified that employers are not required to pay employees more than the monetary limits set forth in the FFCRA. Employers are of course permitted to provide additional compensation, however, that compensation is not eligible for a tax credit.

Third, the CARES Act permits employers to request an advance for anticipated tax credits and refunds for employers who do not have a large enough cash reserve to front paid sick leave permitted by the FFCRA. Originally, the FFCRA provided employers the opportunity to receive reimbursement through tax credits for wages paid under the FFCRA. The same caps that applied to reimbursement still apply to the potential tax credit advances. There is also now penalty relief for employers who are unable to deposit employer-side social security taxes, if the employer is anticipating a tax-credit for providing leave pursuant to the FFCRA.

Lastly, the CARES Act also (1) expanded the Director of the Office of Management and Budget’s authority to exclude certain employees from the definitions of eligible employee provided by the EPSLA and the EFMLEA; (2) expanded the Department of Labor’s authority to investigate and gather data to ensure compliance with the CARES ACT, in the same manner as authorized by the Fair Labor Standards Act of 1938 (“FLSA”); (3) amended the Employee Retirement Income Security Act of 1974 (“ERISA”); (4) extended certain tax deadlines; and (5) expanded state unemployment benefits.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us online or by calling us at (205) 319-9724.