FAMILY FIRST CORONAVIRUS RESPONSE ACT

Our goal is to keep you informed.

The first section of the FFCRA that applies to businesses pertains to an expansion of the U.S. Family and Medical Leave Act (FMLA). Until the end of 2020, employers with fewer than 500 employees will now be required to provide employees with up to 10 weeks of paid FMLA. The first two weeks of the normal 12-week FMLA leave may be provided unpaid, but an employee may be able to be paid through the paid sick leave provision or other paid leave the employee has available.

Updated 3/27/20 3:00pm

You are required to post this notice for employees about the new FFCRA law.

DOWNLOAD REQUIRED NOTICE HERE

What is the new federal COVID-19 law, and what does it do?

Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA) is a federal law that will require employers to facilitate two major benefits. Under the new law, employees must be given:

  1. Up to two weeks of emergency paid sick leave (EPSL) for illness, quarantine, or school closures related to COVID-19.
  2. Up to 12 weeks of emergency Family and Medical Leave Act (EFMLA) leave for care of their children during school closures related to COVID-19, most of which must be paid. A few exceptions apply.

Originally posted March 24, 2020 in relation to the quickly-developing COVID-19 outbreak.

Qualifying Reasons for Leave

Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. 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; or
  6. 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.

Under the FFCRA, an employee qualifies for expanded family and medical leave if 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.

Does the FFCRA apply to me if I have more than 500 employees? How do I count them?

The Families First Coronavirus Response Act (FFCRA) does not apply to employers with 500 or more employees. The term “employee” is defined in the same way as in the Fair Labor Standards Act (FLSA) for emergency paid sick leave (EPSL) and the same way as in the Family and Medical Leave Act (FMLA) for emergency FMLA (EFMLA) leave. Generally, if they are currently on your payroll, then you would count them.

Originally posted March 24, 2020 in relation to the quickly-developing COVID-19 outbreak

How does the FFCRA apply to state law obligations, like unemployment or state-mandated paid sick leave?

Employers need to comply with both the Families First Coronavirus Response Act (FFCRA) as well as with their state sick leave obligations. The act does not specifically prohibit employers from combining the sick leave under emergency paid sick leave (EPSL) with their existing policies.

Originally posted March 24, 2020 in relation to the quickly-developing COVID-19 outbreak

What are our EPSL and EFMLA obligations to different employee situations, such as remote employees?

In general, emergency paid sick leave (EPSL) is available to all employees of private employers with fewer than 500 employees, public agencies, and other entities with more than one employee (no matter how long they have been employed or if they are remote). The emergency expansion of the FMLA (EFMLA) is available to employees of employers with fewer than 500 employees who have been employed for at least 30 calendar days. For both EPSL and EFMLA, employers may exempt health care providers and emergency responders.

Originally posted March 24, 2020 in relation to the quickly-developing COVID-19 outbreak.

Do we need to provide the required sick leave under FFCRA in addition to the sick leave we already offer, or can we lump it all together?

There is nothing in the law preventing employers from creating one policy that includes the sick leave required under the Families First Coronavirus Response Act (FFCRA) as well as other sick leave an employer chooses or is required to provide. However, we urge caution in doing so for two reasons: 1) when combining policies that intend to meet multiple requirements, you need to make sure to include the most employee-friendly provisions from each; and 2) additional guidance given in the next few weeks could provide more details about how this leave should interact with existing leaves.

Originally posted March 24, 2020 in relation to the quickly-developing COVID-19 outbreak.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Short Term Paid Leave - FMLA

The short-term paid sick leave may be used if the employee cannot work because of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order;
  • The employee has been told to self-quarantine by a doctor/hospital due to Covid-19 exposure or symptoms;
  • The employee has tested for COVID-19 and is waiting for results;
  • The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been told to self-quarantine due to symptoms or exposure to COVID-19; and/or
  • The employee needs to care for their child due to school closure due to Covid-19.

The bill does not require that the 10 days of paid sick time be provided in addition to whatever paid sick time or PTO the employer already provides to its employees. However, employers may not require that an employee use any other paid time program offered by the employer before using this sick leave.

Long Term Paid Leave - FMLA

With regard to long-term leave, employees must be provided with 12 weeks of job-protected leave. The first two weeks (10 days) of such leave can be unpaid, while the following 10 weeks must be paid. For the first ten days, the employee may use the 10 days of paid sick leave provided by the bill or use any other paid leave otherwise available from the employer.

The bill does not explain how to determine which employees count toward the 500-employee cap. As the bill adopts the FLSA’s definition of employee, it is likely only employees working within the United States and its territories count. Whether and how employers should count the employees of separate, but related, entities when determining coverage is a more complicated issue, and one on which we will be issuing further analysis. All employees, full-time and part-time, are eligible for the paid leave. However, to be eligible for the long-term leave, they must have been employed for at least 30 days.

Limitations on Payments

However, regardless of the employee’s salary, the bill limits the amount of payments the employer must make, so that such payments will be equal to the tax credit the employer will receive in return.

For sick leave payments, that means an employee may receive up to $511 per day and $5,110 in the aggregate if the employee uses the sick time because of his or her own needs. The employee may receive up to $200 per day and $2,000 in the aggregate if the employee uses the 10 sick days to care for someone else.

For long-term (FMLA) payments, the employee may receive $200 per day and $10,000 in the aggregate.

Thus, the amount of wages that employers must pay for either the short-term sick leave or the long-term FMLA leave will never exceed the tax credit that the employer will be permitted to apply against certain taxes. (See description of the tax credit below.)

Other Notice Requirements

After the first workday that an employee receives paid sick time, the employer may require the employee to follow “reasonable notice” procedures in order to continue receiving the paid sick time. “Reasonable notice” is not defined in the bill.

The employer may not require that the employee find or search for a replacement to cover the hours the employee will be on sick leave.

Tax Credits Available

The bill authorizes a refundable payroll tax credit for qualified sick leave wages (Sec. 7001 (a)) and qualified family medical leave wages (Sec. 7003 (a)) that can be applied against the 6.2% Old-Age, Survivors, and Disability Insurance, or (Social Security) taxes that the employer/self-employed taxpayer pays on wages up to $137,700.

  • The credit is limited to $511/day per employee if qualified sick leave was taken by the employee for his or her own needs or $200/day per employee if qualified sick leave was taken to provide care for others. In either case, the credit is limited to 10 days of leave per qualifying employee. Sec. 7001 (b)
  • The credit is limited to $200/day per employee, with an aggregate $10,000 cap per employee, if taken for qualified family medical leave. (Sec. 7003 (b)(1)(B))
  • Because of the effective date of the provisions, i.e., 15 days after action by the Secretary, the credits are only available for Q2 through Q4 2020. Enactment will take too long for the credit to have any application in Q1. (Sec. 7001 (g); Sec. 7003 (g)) (The first quarter ends March 31;the legislation was signed by the President on March 18, 2020 and the effective date is April 2, 2020.)
  • To the extent that a covered employer elects to receive the credit, the credit amount must be taken into the employer’s gross income, which effectively eliminates any potential double benefit because the employer will have deducted the sick leave wages it paid. Sec. 7001 (e) (1); Sec. 7003 (e) (1).
  • The qualified sick leave and qualified family leave wages paid are not “wages” for the employer-portion of the Social Security tax. (Sec. 7001 (a)) The legislation has no effect on the employee-portion of the Social Security tax, nor does it have any effect on employer or employee-portion of the Medicare tax.

Are there exemptions?

As mentioned above, businesses with fewer than 50 employees may be exempt from all of these requirements if they can prove that providing the leave would risk them going out of business. Other provisions of note include:

  • Businesses with fewer than 25 employees are not required to reinstate an employee to their position after they return from leave but all businesses with more than 25 employees must do this.
  • Businesses with fewer than 50 employees are exempt from civil actions brought by employees for violations regarding emergency paid FMLA.
  • Healthcare and emergency response organizations may exclude employees from paid FMLA expansion due to the coronavirus crisis.

DOL Questions & Answers

As provided under the legislation, the U.S. Department of Labor will be issuing implementing regulations. Additionally, as warranted, the Department will continue to provide compliance assistance to employers and employees on their responsibilities and rights under the FFCRA.

DOL QUESTIONS & ANSWERS

DOL FACT SHEET FOR EMPLOYERS

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

DOL FACT SHEET FOR EMPLOYERS