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On March 17, 2020, the Bay Area abruptly implemented a regional shut down, spanning across six of its counties, to prevent the spread of COVID-19 — a virus we knew little about at the time. Days later, Governor Gavin Newsom implemented a statewide shelter-in-place order, directing the people of California to stay in their homes to prevent the spread of COVID-19. Many families were forced to quickly transform their homes into offices and classrooms, having to perform multiple roles within their homes while navigating collective trauma experienced from the realities of a pandemic. To offer relief to families and businesses, the Families First Coronavirus Response Act (“FFCRA”) was put into effect on April 1, 2020. When initially designed, many hoped that the shelter-in-place would be over by summer, with the virus contained. As of today, California has recorded over one million COVID-19 cases, and we are still sheltering in place.
Although the Act does provide some relief, it is not adequate given the extended duration of the pandemic and the lived realities of a diverse American workforce. Like the impact of the virus itself, the shelter-in-place has had disproportionate effects across various communities. Initially, many characterized COVID-19 as “the great equalizer” across our nation. This characterization was quickly disproved; both the virus and the impact of the shelter-in-place revealed and exacerbated existing systemic inequities, including among people with disabilities, BIPOC communities, womxn, elderly folks, immigrants, trans and non-binary individuals, people experiencing homelessness, low-income communities, and more.
Though the FFCRA only provides limited relief, it may still be helpful, especially for some of our essential workforce experiencing increased burdens during the shelter-in-place. Earlier this year, the designation of “Essential Critical Infrastructure Workers,” more commonly referred to as “essential workers” or “frontline workers” was introduced. This categorization allows essential workforce sectors (i.e. healthcare, food, and agriculture, etc.) to continue operations during the shelter-in-place to protect communities and ensure the continuity of functions critical to public health, safety, economic security, and national security. Make no mistake, these workers have always been essential to our communities and deserve the living wage they have long been entitled to but are still refused across several local jurisdictions.
In the Bay Area, our essential workforce is primarily immigrant workers and workers of color, mostly women of color. Studies have shown that essential workers are more economically vulnerable, living in or near poverty. Every day, essential workers risk their health and safety to keep us all safe while facing systemic inequities that are stacked to make them less safe and secure. The inequities essential workers face are solvable, and it is our collective duty to keep them safe too.
Essential workers are also more likely to care for dependents at home and are more likely to lack internet access compared to non-essential workers. Much of our essential workforce juggles supporting their children through remote schooling within a digital divide while needing to physically report to work every day.
In navigating the “new normal,” many parents across various occupations quickly found themselves performing a balancing act overseeing children’s remote schooling while still reporting for work every day, either by telework or in-person. As a response, the Families First Coronavirus Response Act (“FFCRA”) was put into effect on April 1, 2020, to provide some relief to workers navigating the barely visible boundaries between home, school, and work. The FFCRA requires some employers to provide their employees with paid sick leave or expanded family and medical leave for specified circumstances related to COVID-19. Though the act can provide some relief to both essential and non-essential workers, it may be especially beneficial to essential workers who typically cannot be at home to support children’s remote-learning due to work.
The FFCRA offers only some relief to navigating life during the COVID-19 pandemic. We look to leadership in hopes that they will implement comprehensive solutions to offer adequate relief and support to move us forward equitably — including into a post-pandemic world. The FFCRA is currently set to expire on December 31, 2020, and there is little information on whether it will be extended or revised. The requirements under the FFCRA as it reads now are particular, and not all employees may be eligible under their current employers. Below we have provided some information to help see if you may qualify for leave under the Act.
The FFCRA is a temporary rule that offers American workers and employers protections and relief under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which are both a part of the FFCRA. The intention is to ensure that employees are not forced to choose between a paycheck and public health measures that are needed to combat the virus while also reimbursing businesses.
Not all employers are covered under the FFRCA. The Department of Labor outlines covered employers for paid sick leave and expanded family and medical leave under the FFCRA as follows:
- Private employers with fewer than 500 employees
- Certain public employers:
- Federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision under FFCRA
Employers who may not be covered include the following:
- Private employers with over 500 employees;
- Small businesses with fewer than 50 employees if leave requirements for school closings or childcare unavailability would jeopardize the viability of the business as a going concern
- Certain public employers:
- Federal employees covered by Title II of the Family and Medical Leave Act are not covered by the expanded family and medical leave provisions of the FFCRA.
Under the FFCRA, you may qualify for expanded family leave if you are caring for a child whose school or place of care is closed, or whose child care provider is unavailable, for reasons related to COVID-19.
If an employee is unable to work, or unable to telework, for one or more of the six qualifying reasons below, they may be eligible for paid sick leave under FFCRA.
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- The employee has been advised by a healthcare provider to self-quarantine related to COVID-19
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis
- The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2)
- The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19
- Under the FFCRA, schools are effectively “closed” when they are not permitted to attend school in-person and must engage in remote-learning. As long as you need to care for your child during that time and no other suitable person is available to do so, you may qualify for leave under FFCRA.
- If your child is attending school remotely as an option while the school has resumed in-person learning, you may not qualify for leave under the FFCRA as the school is not “closed” due to COVID-19 related reasons.
- If your child’s school is operating on a hybrid schedule of both in-person and remote-learning that is not optional, you may be eligible to take paid leave under the FFCRA for each of your child’s remote-learning days.
- The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Employees are entitled up to two weeks, or 80 hours, of paid sick leave at their regular rate of pay when unable to work because the employee is quarantined pursuant to a government order, quarantined under the advice of a healthcare provider, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
If the employee is unable to work due to a bona fide need to care for an individual subject to quarantine (either pursuant to a government order or under the advice of a healthcare provider) or is unable to work because they need to care for a child whose school or child care provider is closed or unavailable related to COVID-19, they are entitled up to two weeks, or 80 hours, of paid sick leave at two-thirds their regular rate of pay. An employee may also be entitled to two weeks of paid sick leave at two-thirds their regular rate of pay if they are experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Treasury and Labor.
Employers are prohibited from terminating, disciplining, or otherwise discriminating against employees who take paid leave or file a complaint related to the FFCRA. If you believe your employer has violated your right to paid sick leave or expanded family and medical leave under the FFCRA, please call our office for a free consultation. For more information about the FFCRA, please visit the Department of Labor’s website and their FAQ.