Article updated on April 16, 2020
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:
- Emergency Paid Sick Leave Act (EPSLA)
- Emergency Family and Medical Leave Expansion Act (EFMLEA)
The effective date of this law is April 1, 2020, and it expires on December 31, 2020.
- Any time missed prior to April 1, 2020 will not be covered under the FFCRA benefits.
- If a business closes after the Act effective date but before an employee takes leave, FFCRA requirements do not apply (except to the days from April 1 to the date employees are laid off).
- If the business is open but lays off part of its workforce, employees who are laid off or furloughed are not entitled to leave under the FFCRA.
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:
- Only the employees working in the U.S., U.S. territories, or D.C.
- Full-time AND part-time employees
- Employees who are working and on leave
- Temporary employees who are jointly employed
- Day laborers supplied by a temporary agency
- The headcount is made when the employee leave is initiated
EMERGENCY PAID SICK LEAVE ACT (EPSLA)
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.
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
- The employee has been directed by a healthcare provider to self-quarantine due to concerns related to COVID-19
- The employee is seeking to obtain medical diagnosis when experiencing symptoms of COVID-19
- To care for a family member, who is subject to a federal, state, or local quarantine or isolation order related to COVID-19
- To care for a child (under 18 years of age), whose school has closed or paid childcare provider is unavailable due to COVID-19
- If the employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services
- Any full-time or part-time employee
- Excludes employees who are health care providers or emergency responders
- A Health Care Provider is: 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 provider, any facility that performs laboratory or medical testing, pharmacy, OR any similar institution, employer, or entity.
- An Emergency Responder is: Anyone necessary for transport, care, health care, comfort and nutrition of such patients, or others needed for the response to COVID-19. Includes 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, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.
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:
- Employee’s regular rate of pay,
- FLSA minimum wage, or
- Highest applicable state or municipal minimum wage
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.
- The new law requires the employer to allow the employee to first use sick leave provided under this law, then decide to use any remaining accrued paid leave under an employer’s policy. The employer cannot require the employee to use accrued leave first.
- Any paid leave provided by the employer before this law’s effective date cannot be credited against the employee’s paid leave entitlement.
- If the leave is taken to care for a child whose school has closed or paid childcare provider is unavailable due to COVID-19, if the employer agrees, the employee may take paid sick leave intermittently.
- This benefit is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap unless this benefit is used concurrently with the first two weeks of EFMLA. If used concurrently with EFMLA, then those two weeks would apply to the cap.
- This benefit is not paid out if the employee should leave the company.
- The employee may use preexisting leave entitlements to supplement the amount of pay they would receive from the paid sick leave, up to the employee’s normal earnings. This cannot be mandated by the employer.
EXPANDED FAMILY AND MEDICAL LEAVE ACT (EFMLA)
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, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child.
- The U.S. Department of Labor Wage and Hour Division (WHD) clarifies that under the FFCRA, a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.
- Any full-time or part-time employee that has been on the employer’s payroll for 30 calendar days
- Excludes employees who are healthcare providers or emergency responders
- The first 10 days (two weeks) are unpaid, but an employee may choose to use EPSLA or accrued paid time under their employer benefits package at the same time as unpaid EFMLEA leave.
- The remaining 10 weeks are paid at 2/3 of the employee’s regular rate for the number of hours the employee would otherwise be scheduled to work – with a maximum payment of $200 per day and $10,000 total per employee.
- An employee may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. Any time taken under the EFMLEA between April 1 through December 31, 2020 will reduce the amount of time available under FMLA and is limited to 12 workweeks in the 12-month period. If an employee has already exhausted their 12 workweeks under the standard FMLA plan, they are not eligible for any benefits under EFMLEA. (This is only applicable if the employer was covered by the FMLA prior to April 1, 2020.)
- If the employer and employee agree, the employee may take paid family and medical leave intermittently.
- The employer can require the employee take concurrently for the same hours EFMLA and any existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off.
- The employee may use preexisting leave entitlements to supplement the amount of pay they would receive from the paid family and medical leave, up to the employee’s normal earnings.
- This benefit is not paid out if the employee should leave the company.
SMALL BUSINESS EXEMPTION
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:
- Employer has fewer than 50 employees;
- Leave is requested because the child’s school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons; and
- An authorized officer of the business has determined that at least one of the following three conditions is satisfied:
- The provision of either leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee(s) requesting the leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities;
- There are no sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting the leave, and these labor or services are needed for the small business to operate at a minimal capacity.
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 name of the employee requesting the leave;
- The date(s) for which the leave is requested;
- The reason for the leave; and
- A statement from the employee that he or she is unable to work or telework because of the specified reason.
- Supporting documentation, which may include:
- If the employee or another individual is self-quarantined based
- The name of the health care provider who gave the advice;
- Medical certifications, as required under FMLA, if the medical condition for COVID-19 reasons rises to the level of a serious health condition.
- If due to childcare
- Name of the child(ren) being cared for;
- Name of the school, place of care, childcare provider that has closed or is unavailable;
- A statement from the employee that no other suitable person is available to care for the child(ren) (such as a co-parent, co-guardian or the usual childcare provider);
- Confirmation none of the children are over the age of 14. If requesting leave to care for a child over the age of 14, the employee must certify that “special circumstances” exist requiring the care of the child.
- If the employee or another individual is self-quarantined based
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.
- Remedies any violations
- Violations were not “willful”
- The DOL receives a written communication from the employer to comply with the Act in the future
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.
Payroll tax credit eligibility
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.
Frequently asked questions
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?
- Due to the law’s effective date of April 1, 2020, any additional leave that was given to employees prior to this law cannot be counted towards an employee’s leave entitlement under the Act.
How does unemployment work with this law?
- If a company doesn’t have the resources to continue to pay employees and has to temporarily terminate, reduce hours, or layoff employees, it is recommended that the employee contact their state unemployment office for assistance.
We have shut down office operations, and all employees are teleworking now. How does this new Act apply?
- If employees are able to telework with company resources provided, this Act does not apply. This only applies to employees, who are unable to work under the reasons as stated above and under the law.
Does this Act apply for fear of infection?
- An employer is not required to accommodate an employee’s fear of infection. However, this anxiety could be eligible under other leave policies like the Federal FMLA or ADA.
Does the FFCRA apply to private-sector employers with 500 or more employees?
- No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees. Employers with more than 500 employees can elect to extend the same benefits to their employees; however, they are not eligible for the tax relief credit.
When calculating pay due to employees, must overtime hours be included?
- Yes. The Emergency Family and Medical Leave Expansion Act require you to pay an employee for hours the employee would have been regularly 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 two weeks.
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?
- For purposes of the FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate over a period of up to six months before the date on which they take
- If they have been employed less than six (6) months, the regular rate used to calculate your paid leave is the average of the employee’s regular rate of pay for each week they have worked for the
- If they are paid with commissions, tips, or piece rates, these wages will be incorporated into the above
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?
- No. They may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for paid sick leave is capped at 80 hours 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?
- They may be eligible for both types of leave, but only for a total of twelve weeks of paid They may take both paid sick leave and expanded family and medical leave to care for their child whose school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons.
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 childcare provider is unavailable due to COVID-19 related reasons.
Are the paid sick leave and expanded family and medical leave requirements retroactive?
- No. Any time taken or provided before the effective date of April 1, 2020 would not be eligible for tax relief credit.
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?
- No. If prior to the FFCRA’s effective date, you sent your employees home and stopped paying them because you do not have work for them to do, they will not get paid sick leave or expanded family and medical leave; however, they may be eligible for unemployment insurance benefits. This is true whether you closed the worksite for lack of business or because you were required to close pursuant to a Federal, State, or local directive. Your employees should contact your State workforce agency or State unemployment insurance office for specific questions about their eligibility. For additional information, please refer them to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
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?
- The U.S. Department of Health and Human Services (HHS) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the DOL will issue guidance explaining when you may take paid sick leave on the basis of a “substantially similar condition.”
FFCRA IMPORTANT REMINDERS
EMPLOYER NOTICE REQUIREMENTS:
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 poster must be conspicuously posted,
- It may be distributed online, posted on employer website, directly mailed or emailed to employees working in remote locations,
- It does NOT have to be visible to job applicants,
- Translation is not required.
UPDATE I-9 COMPLIANCE REQUIREMENTS:
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.
OSHA REPORTING DURING COVID-19:
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.
CARES ACT UNEMPLOYMENT BENEFITS EXPANSION PACKAGE:
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)
- Provides a total of 39 weeks of unemployment benefits to individuals not typically eligible for unemployment benefits, who have become unemployed as a direct result of COVID-19.
- Includes independent contracts, self-employed (gig workers), part-time workers and those who do not have sufficient wages to qualify for regular unemployment benefits.
- Provided if unemployed, partially unemployed, or unable to work.
Federal Pandemic Unemployment Compensation (PUC)
- Provides an additional $600/week for individuals receiving regular unemployment benefits under state law.
- Eligibility is determined pursuant to the guidelines set by the state.
- Provided if unemployed or partially unemployed.
- Beginning March 29, 2020 and concluding the week ending July 25, 2020.
Pandemic Emergency Unemployment Compensation (PEUC)
- Provides an additional 13 weeks of unemployment benefits for individuals who have exhausted their regular unemployment benefits.
- Available through December 31, 2020.
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.
RELATIONSHIP TO OTHER LEAVE LAWS AND AGREEMENTS
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