On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was put into law with the goal of providing relief to U.S. employees in the form of paid leave. This included a provision for Emergency Paid Sick Leave, expanded coverage on Family and Medical Leave (FMLA), and payroll tax credits for new Paid Sick Leave and Paid FMLA. These provisions are only applied to the Coronavirus, or otherwise known as COVID-19.
Under the FFCRA, the following benefits are available to employees:
The effective date of this law is April 1, 2020, and it expires on December 31, 2020.
This applies to all private employers with fewer than 500 employees, including not-for-profit employers and public agencies (regardless of the number of employees). The employee count perimeters include:
This emergency leave provides immediate benefits that allow all employees, regardless of tenure at a company, who are unable to work or telework because of one of the following conditions as a direct result of COVID-19, to be paid for their time away from work.
Full-time employees can receive up to 80 hours of sick leave. Pay rate is 100% of the employee’s regular rate of pay for above causes one through three; and 2/3 of their regular rate of pay for causes four through six, subject to the pay caps as set forth.
Part-time employees can receive leave based on the number of hours on average the employee works over a two (2) week period of time.
The applicable rate of pay is the highest applicable wage rage, either the:
The Act does provide a cap on paid leave to $511 per day and $5,110 in total per employee. For employees receiving 2/3 rate of pay, the cap on paid leave is $200 per day and $2,000 in total per employee.
This expanded coverage provides up to 12 weeks of FMLA leave for employees on the company’s payroll for 30 or more days to take job-protected leave for a “qualifying need related to a public health emergency.” Meaning, an employee is unable to work/telework due to a need to care for a son or daughter under the age of 18. This is if the school or place of childcare for an employee’s child is closed, or the childcare provider of such son or daughter is unavailable due to COVID-19. This is only available if the employee is unable to work or telework.
Under the FFCRA, an employer, including a religious or not-for-profit organization, with fewer than 50 employees (small business) is exempt from providing certain paid sick leave and expanded family and medical leave requirements if providing an employee such a leave would jeopardize the viability of the business as a going concern. The exemption only applies for the following condition: due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons for both EPSLA and EPFMLA.
This means a small business is exempt from mandated EPSLA and EPFMLA requirements only if the:
To elect the small business exemption, there is no application process. The employer should document why their business meets the criteria as set forth. The documentation should be retained, and no materials should be sent to the DOL.
The employer is required to collect and retain all documentation to support any leave request for four (4) years. This documentation is for all requests, regardless if they are granted or denied. If the employer receives an oral statement from an employee, the employer is responsible for documenting the statement and maintaining the records of the conversation. All documentation should include the type of request, the determination – if approved or denied, along with all supporting records. The following information should be obtained and documented:
The employer is not required to provide leave if materials sufficient to support the request have not been provided.
For consistency purposes, it is recommended the employer develop a standardize form to be used for all requests. Sample request forms are available on the Sikich Coronavirus (COVID-19) Resource Center for use.
The FFCRA is enforced by WHD. The DOL published a notification stating they will not bring enforcement actions against public or private employer for violations occurring within 30 days of the enactment of the FFCRA – March 18 through April 17, 2020. Provided an employer found to have violated the FFCRA acts “reasonably” and “in good faith” and the employer.
After April 17, 2020, this limited stay of enforcement will be lifted, and the DOL will fully enforce violations of the Act as appropriate and consistent with the law. Once the DOL full enforces the Act, it will retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.
Private sector employers that provide EPSL and EFML required by the FFCRA are eligible for reimbursement of the costs through refundable tax credits. A refundable tax credit is equal to 100% or qualified paid sick leave and family leave wages paid by an employer for each calendar quarter, subject to FFCRA’s statutory limits.
You should consult the Internal Revenue Service (IRS) website for 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.
On March 24, 2020, the DOL released their first set of “Questions and Answers” on COVID-19 and the FFCRA to address compliance questions. Since their first release, several addition updates have been made with a total of 79 questions and answers being available. These questions can be accessed by visiting the DOL website.
Below is a recap of clarification received on some commonly asked questions.
I already provided two weeks of additional paid leave to employees prior to this law going into effect. Can I credit that against an employee paid leave entitlement under this Act?
How does unemployment work with this law?
We have shut down office operations, and all employees are teleworking now. How does this new Act apply?
Does this Act apply for fear of infection?
Does the FFCRA apply to private-sector employers with 500 or more employees?
When calculating pay due to employees, must overtime hours be included?
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.
How do you calculate the regular rate of pay for purposes of the FFCRA?
You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
Can an employee take 80 hours of paid sick leave for self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?
If an employee is home with a child because his or her school or place of care is closed, or childcare provider is unavailable, can they get paid sick leave, expanded family and medical leave, or both—how do they interact?
Is all leave under the FMLA now paid leave?
Are the paid sick leave and expanded family and medical leave requirements retroactive?
If we closed our worksite before April 1, 2020 (the effective date of the FFCRA), can our employees still get paid sick leave or expanded family and medical leave?
However, it should be noted that if you are still paying your employees pursuant to a paid leave policy or State or local requirements, your employees are not eligible for unemployment insurance.
When is an employee eligible for paid sick leave based on a “substantially similar condition” specified by the U.S. Department of Health and Human Services?
All employers must conspicuously post a notice regarding the requirements of the EPLSA in physical work locations. An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website for those employees who are working remotely. The DOL provides a free model notice along with a FAQ document, available on the DOL website. The poster is also available in various languages. There is no requirement to maintain a handbook policy for this Act.
The Department of Homeland Security announced relaxed requirements for completing I-9 documents during this public health crisis on March 20, 2020.
Due to the quarantine or Stay at Home orders put in place, employers “will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.” This doesn’t mean employers do not have to inspect documents. Instead, documents must be checked remotely by either video link, fax, email, or some other method to obtain and examine documents. The three (3) day timeframe for completing this has not changed.
Once business operations return to normal, employers should still physically inspect documents and complete Section 2. “Employers should enter ‘COVID-19’ as the reason for the physical inspection delay in Section 2 Additional Information field. Once documents have been physically inspected, the employer should add “documents physically examined” with the date of the physical inspection.
If employees were temporarily laid off due to lack of financial resources because of a stay at home order, Section 3 of the I-9 form could be used as appropriate.
The Occupational Safety and Health Administration (OSHA) requires employers to record work-related injuries and illnesses. The determination was made by OSHA that COVID-19 falls under the illness reporting requirements as defined as “an abnormal condition or disorder both acute and chronic illnesses.”
On April 10, 2020, OSHA announced that COVID-19 will not be a recordable injury in most areas and industries. OSHA’s interim guidance says that – except for employers in the health care industry, emergency response organizations, and correctional institutions – employers in areas where there is ongoing community transmission of COVID-19 will not be required to treat COVID-19 cases as recordable incidents for OSHA record keeping purposes unless there is objective evidence, reasonably available to the employer, that a COVID-19 case may be work-related.
More explicitly, only confirmed cases of COVID-19 should be reported. However, the employer needs to assess whether the confirmed case was ”work-related” as defined under the rule. Things like the type of work, risk of person-to-person transmission, and work environment should all be taken into consideration when determining if the illness was “work-related.”
It is also recommended that employers monitor their local state requirements for workers’ compensation. Recently, the State of Illinois made it easier for certain workers who contract COVID-19 to be covered by the state workers’ compensation system. In an emergency amendment to the Rules of Evidence applicable to matters before the Illinois Workers’ Compensation Commission, many employers will now face a significant change in the applicable burden of proof that will make it much more challenging to defend such claims. The burden of proof will now fall back on the employer to rebut the presumption and provide evidence that the worker did not contract the virus at work. Employers across the country should take note of this change since it is likely that other states will soon follow Illinois’ lead.
The CARES Act provides expanded unemployment benefits for those individuals affected by the COVID-19 pandemic, and the supplemental benefits are fully funded by the federal government. These programs are designed to work together to provide benefits to the maximum number of affected employees possible under the Act. All of these benefits ae fully funded by the Federal Government and will be administered through the state agencies responsible for handling unemployment compensation benefits. Since these benefits are fully funded by the Federal government, states may not charge employers for any of the expanded unemployment benefits issued under the CARES Act. Therefore, the employer’s experience rating and future UI tax rates will not be impacted.
Pandemic Unemployment Assistance (PUA)
Federal Pandemic Unemployment Compensation (PUC)
Pandemic Emergency Unemployment Compensation (PEUC)
Additional Benefits
The Act also provides for 100% funding the first week of compensable regular unemployment for states with no waiting week. Not all states currently have a no waiting week – those states that do not have this provision will likely eliminate this requirement during the pandemic.
Employers should still comply with any other federal, state, or local leave laws to which they are subject, as well as any collective bargaining agreements. The FFRCA does not supersede or preempt any other law.
Additional information on COVID-19 can be found on your local state Department of Health website or by visiting one of the following:
Centers for Disease Control and Prevention
U.S. Occupational Safety and Health Administration
U.S. Small Business Administration
U.S. Chamber Coronavirus Website for Small Businesses
Sikich Coronavirus (COVID-19) Resource Center
STAY UP-TO-DATE ON ALL COVID-19 DEVELOPMENTS
https://www.cdc.gov/coronavirus/2019-ncov/index.html
https://www.osha.gov/SLTC/covid-19/
https://www.fmlainsights.com/president-trump-signs-emergency-fmla-leave-and-paid-sick-leave-in-wake-of-coronavirus-pandemic-here-are-the-details/
https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Senate-to-Vote-Soon-on-Coronavirus-Paid-Leave-Mandate.aspx
https://www.jacksonlewis.com/publication/employer-obligations-under-proposed-families-first-coronavirus-act-hr-6201
https://laborandemploymentlawupdate.com/tag/coronavirus-covid-19/
https://www.usa.gov/coronavirus#item-214586
https://www.dol.gov/agencies/whd/pandemic
https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
https://www.cdc.gov/coronavirus/2019-ncov/
https://www.uscis.gov/i-9
https://www.osha.gov/recordkeeping/index.html
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