On March 18, 2020, Congress approved the Families First Coronavirus Response Act (“FFCRA” or the “Act”), an emergency relief bill providing financial support to those impacted by the COVID-19 pandemic.
This law will go into effect on April 1, 2020 and remain in effect until the end of 2020.
The FFCRA contains a number of provisions related to leave from employment, COVID-19 testing, unemployment benefits, and nutrition and food assistance programs. This summary focuses on key provisions related to paid sick leave, expanded family and medical leave, and associated tax credits for employers.
Emergency Paid Sick Leave
The emergency paid sick leave provisions of the FFCRA require that private employers with fewer than 500 employees provide paid emergency sick leave to eligible employees who need leave for the following reasons:
- The employee is experiencing symptoms of COVID-19;
- A healthcare provider has ordered the employee to self-quarantine;
- A quarantine or isolation order has been issued by federal, state, or local authorities;
- The employee is caring for an individual subject to a quarantine or isolation order;
- The employee is caring for a minor child whose school or childcare provider is closed.
All employees are eligible for emergency paid sick leave, regardless of how long they have worked for an employer. Full-time employees are eligible for two weeks of paid leave, capped at 80 hours total. Part-time employees are eligible for paid leave equivalent to the number of hours they work on average over a two-week period. Emergency paid sick leave must be made available in addition to any existing paid time off policies, and employers cannot require that employees use accrued paid time off prior to utilizing emergency paid sick leave.
For employees using emergency paid sick leave for their own illness or quarantine order, the employee must receive their regular rate of pay, capped at $511 per day and no more than $5,110 over a two-week period of leave. If the employee takes leave to care for a quarantined individual or minor child whose school or childcare provider has been closed, the employee must receive two-thirds their regular rate of pay, capped at $200 per day and no more than $2,000 over the two-week leave period.
To qualify for the Emergency Sick Leave, an employee must provide his/her employer with documentation in support of the reasons for the paid sick leave outlined above, including the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. These documents may include a copy of the Federal, State, or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19.
Employers with fewer than 50 employees may qualify for a hardship exemption for leave requested by an employee, but only for the purpose of caring for a child because the child’s school or daycare has closed due to COVID-19. The US DOL stated the qualifying reasons for this exemption are: (1) Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity, (2) the absence of the employee requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of his or her specialized skills, knowledge of the business, or responsibilities, or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee requesting leave provides, and these labor or services are needed for the small employer to operate at a minimal capacity. This decision can be made on a case-by-case basis for each employee request. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee, the employer must document the facts and circumstances that meet the above criteria. The employer should retain such records for its own files.
Additionally, employers may choose to exclude some health care providers and emergency responders from this Act. “Health care provider” includes anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution. This includes any individual employed by an entity that contracts with any of these organizations to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, as well as anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID–19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. An “emergency responder” is defined as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID–19, which includes, but is not limited to, military or National Guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, and public works personnel.
Expanded Family and Medical Leave
The FFCRA also extends expanded FMLA protections to employees who have worked for their employer for at least 30 days, and are unable to work or telework in order to care for a minor child whose school or childcare provider is closed due to COVID-19. As with emergency paid sick leave, these expanded FMLA protections must be provided by employers with fewer than 500 employees.
The expanded FMLA protections extend up to 12 weeks of leave to eligible employees, with the first two weeks of this leave period incorporating the two weeks of emergency paid sick leave outlined above. During these first two weeks, employees may elect to instead use their accrued paid time off. After the first two weeks of emergency paid sick leave, employers must continue to pay eligible employees two-thirds their regular pay, capped at $200 per day and no more than $10,000 in the aggregate. Unless an employee is teleworking, once an employee begins taking paid sick leave for a qualifying reasons, s/he must continue to take paid sick leave each day until s/he either uses the full amount of paid sick leave or no longer has a qualifying reason for taking paid sick leave.
An employee working from home or teleworking, may take FFCRA leave intermittently, if the employer agrees. The intermittent leave may be taken in as small of increments as the employer approves. The DOL has encouraged employers to be flexible with employees during this time, suggesting a permissible use of intermittent leave would be for the employee to work on Tuesdays and Thursdays and use the paid extended FMLA leave to provide child care to a child whose school is closed due to COVID-19. An employee still working at the worksite may not take intermittent leave if the leave is due to a required quarantine, COVID-19 symptoms, or taking care of someone in isolating or experiencing COVID-19 symptoms.
Generally speaking, when taking FMLA leave for any qualified reason, employers are required to restore employees to the same position held prior to taking leave. This job restoration requirement also extends to employees taking leave under the FFCRA’s expanded FMLA protections, except that employers with less than 25 employees are not required to restore employees if: (i) the position held by the employee no longer exists due to economic conditions or other changes in operating conditions caused by a public health emergency; (ii) the employer makes reasonable efforts to restore the employee to a position equivalent to that previously held by the employee; and (iii) if these reasonable efforts fail, the employer makes reasonable efforts over the course of one year to contact the employee if an equivalent position becomes available.
Both emergency paid sick leave and expanded FMLA protections are considered to be protected leave, and employers may not interfere with employees’ rights to use these benefits or retaliate against employees who exercise their rights. However, if an employer decides it has to lay off, reduce hours, or shut down due to COVD-19, the employer may do so, even if the action affects an employee on either type of leave under the FFCRA. If a company closes while an employee is out on a paid leave, the paid leave stops. The employer must provide the paid leave benefit until the time of closing. After the business has closed, the employee will be eligible for unemployment insurance. Employers should also remain mindful that in addition to these benefits, employees may be eligible to take paid leave under their employer’s internal policies or pursuant to a state’s paid sick leave law, under a short-term or long-term disability insurance plan, or the employee may be eligible to take additional unpaid FMLA leave to attend to their own serious health condition or to care for an ill family member.
To qualify for this leave, an employee must provide to his/her employer documentation in support of the expanded FMLA leave to care for his/her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. This requirement may be satisfied with a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed from an employee or official of the school, place of care, or child care provider. The employer must retain this notice or documentation in support of expanded family and medical leave, including while the employee may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.
The same exemptions to the EPSLA apply to the EFMLEA.
Tax Credits for Paid Leave
The FFCRA further provides that employers may recapture benefits paid towards emergency paid sick leave or expanded FMLA protections through a refundable tax credit, applied against the employer’s Federal Insurance Contribution Act (or “FICA”) taxes. The extent of these credits aligns with the amounts to be paid eligible employees. In other words, for those employees eligible to receive emergency paid sick leave benefits up to $511 per day, the employer may claim a credit up to $511 per employee per day, and for those employees eligible to receive emergency paid sick leave or expanded FMLA benefits up to $200 per day, the employer may claim a credit up to $200 per employee per day. These credits can be claimed by employers each quarter.
The IRS has provided the following examples of how businesses can take advantage of these credits:
- If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
- If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.
If an employer intends to claim a tax credit under the FFCRA for payment of sick leave wages under the FFCRA, it should retain all of the required documentation from the employee in its records. Employers should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
The U.S. DOL is continuously issuing further guidance on the implementation of the FFCRA. For the most up to date information please refer to https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.