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April 24, 2020
The Families First Coronavirus Response Act: Federal
Employee Leave
The Families First Coronavirus Response Act (FFCRA;
P.L. 116-127) established two types of Coronavirus Disease
2019 (COVID-19) related leave for employees:
* Division C of the FFCRA, titled the Emergency Family
and Medical Leave Expansion Act (EFMLEA),
amended the Family and Medical Leave Act (FMLA) to
make FMLA leave available to an employee unable to
work or telework because a child's school or place of
care is closed or a childcare provider is unavailable for
COVID-19-related reasons. The first 10 days of this new
emergency FMLA leave may be unpaid leave, but an
employer must provide paid leave, up to a possible 10
weeks, for leave taken after 10 days.
* Division E of the FFCRA, titled the Emergency Paid
Sick Leave Act (EPSLA), requires employers to provide
paid sick time to an employee unable to work or
telework for specified COVID-19-related reasons, such
as being subject to a quarantine or isolation order.
Although the paid sick time provided by the EPSLA is
available for most federal employees, emergency FMLA
leave is available only for certain federal employees. This
In Focus explores the differences in federal employee
coverage under the EFMLEA and the EPSLA, and
discusses how the EFMLEA's amendment of the FMLA
created coverage for only a subset of federal employees.
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As enacted in 1993, the FMLA provided an eligible
employee up to 12 workweeks of unpaid leave during any
12-month period for certain significant family and medical
purposes, like the birth or placement of the employee's
child or the employee's serious health condition. For more
information on the FMLA, see CRS Report R44274, The
Family and Medical Leave Act: An Overview of Title I.
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FMLA-protected leave is available to federal civil service
employees and other types of employees under separate
titles of the FMLA. While Title I of the FMLA applies
generally to private sector employees and the employees of
state and local governments, Title II of the statute provides
family and medical leave to most federal employees. Title
II of the FMLA amended Chapter 63 of Title 5, U.S. Code,
to add a new Subchapter V that provides an analogous
family and medical leave benefit to most federal
employees. Notably, the term eligible employee is defined
in Title I to exclude any Federal officer or employee
covered under subchapter V of chapter 63 of Title 5[.] By
amending only Title I of the FMLA, the EFMLEA provided
emergency FMLA leave only to those eligible employees
covered by that title, effectively excluding most federal
civil service employees.
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Not all federal employees are covered by Subchapter V of
Chapter 63 of Title 5. Definitions established under
Subchapter V provide that the term employee does not
include the following federal employees:
* individuals employed on a temporary or intermittent
basis;
* employees of the Government Accountability Office
and the Library of Congress;
* part-time employees who do not have an established
regular tour of duty during the administrative
workweek;
* employees of either House of Congress or of the two
Houses;
* officers in the executive branch who are appointed by
the President and whose rate of basic pay exceeds the
highest rate payable under Section 5332 of Title 5, U.S.
Code;
* officers in the executive branch who are designated by
the President, except a postmaster, U.S. attorney, or U.S.
marshal;
* chiefs of mission, as defined by the Foreign Service Act;
* officers in the legislative or judicial branch who are
appointed by the President;
* Reserves of the Armed Forces who are not on active
duty or who are on active duty for training; and
* employees of the U.S. Postal Service or the Postal
Regulatory Commission.
As federal employees who are not covered by Subchapter
V, these individuals would be considered eligible
employees under Title I of the FMLA if they satisfied the
statute's other eligibility requirements. In general, to be an
eligible employee under Title I, an individual must work for
an employer with at least 50 employees within 75 miles of
the worksite, and have been employed for at least 12
months with the employer from whom leave is requested,
and for at least 1,250 hours of service with this employer
during the previous 12-month period. The EFMLEA altered
these requirements for emergency FMLA leave. For this
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