An Employers' Guide to the Families First Coronavirus Response Act
For additional details about the FFCRA, please see a more recent post here.
On March 18, 2020, the President signed the Families First Coronavirus Response Act, HR 6201, in response to the coronavirus pandemic. Here is a summary of key points for employers to consider in business planning and compliance in the weeks and months to come.
Effective Date: April 1, 2020
Emergency Paid Sick Leave:
- All public employers, and all private employers with fewer than 500 employees, must provide up to two (2) weeks of paid sick leave to any employee who cannot work or telework due to one of the six qualifying reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine or isolation order as described in (1) above or has been advised as described in (2) above.
- The employee is caring for a son or daughter whose school or place of care has been closed, or the child care provider is unavailable, for reasons related to COVID-19.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
- Private employers with fewer than 50 employees may apply to the Department of Labor for an exemption from providing paid sick leave and expanded FMLA for child care reasons (qualifying reason #5) if the law’s requirements “would jeopardize the viability of the business as a going concern.” This exemption only excuses an employer from requiring emergency paid sick leave for child care reasons set forth in reason 5 above.
- Employers may exclude healthcare providers or emergency responders from paid sick leave. The Department of Labor should be writing regulations explaining who may be exempt and what procedures to follow.
- Full-time employees are entitled to 80 hours of paid sick leave; part-time employees are entitled to leave in the amount they typically work in a two-week period.
- The maximum amount an employer must pay is $511 per day ($5,110 aggregate) when leave is taken for qualifying reasons 1, 2 or 3, and $200 per day ($2,000 aggregate) when leave is taken for qualifying reasons 4, 5 or 6.
- Covered employers are required to post a notice informing their workforce of these rights “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” For employees who are not working on the premises, employers can distribute the notice by email, company intranet, or direct mail. A model notice in both English and Spanish can be downloaded from the Department of Labor website.
- All Emergency Paid Sick Leave expires on December 31, 2020. Unused paid leave does not carry over into 2021. There is no right or entitlement for unused leave to be paid to employees on separation from employment.
- Emergency Paid Sick Leave does not diminish the rights or entitlements employees already have under (a) other federal, state, or local law, (b) a collective bargaining agreement, or (c) existing employer policy. In other words, this is an extra two (2) weeks of leave in addition to leave an employer offers in compliance with Seattle and Washington State laws or a voluntary employer policy.
- Employers may claim a tax credit up to the $511/day and $200/day maximum amounts. The credits will be claimed against taxes imposed under Internal Revenue Code Section 3111(a), the employer portion of Social Security taxes. Any amount that an employer overpays will be repaid by the federal government as a tax refund. We recommend contacting your payroll service or accountant for advice about the mechanics of how to claim this tax credit, including adjustments to payroll processing beginning on April 1, 2020.
Emergency FMLA Expansion:
- The Act temporarily changes the Family Medical Leave Act (FMLA) to add Public Health Emergency Leave. As with Emergency Paid Sick Leave, these changes apply only to government employers and private employers with fewer than 500 employees.
- Employee eligibility is much easier to satisfy than the ordinary FMLA rules. Any employee who has worked for the employer for at least 30 days is eligible for up to twelve (12) weeks of job-protected leave.
- Just as with Emergency Paid Sick Leave, the Act allows employers to exclude healthcare providers or emergency responders from Public Health Emergency Leave.
- The leave is available for only one reason: the employee is caring for a son or daughter whose school or place of care has been closed or the child care provider is unavailable for reasons related to COVID-19.
- The first two (2) weeks of the leave are unpaid. This is because it is designed to overlap with the Emergency Paid Sick Leave.
- The remaining ten (10) weeks of the leave are paid. Employers must pay the employee at a rate of no less than two-thirds of the employee’s usual rate of pay, for a maximum of $200 per day and $10,000 in total.
- Employees have similar job restoration rights as under the regular FMLA, except that employers with fewer than 25 employees may deny restoration to the same or a similar job if the employee’s position does not exist after FMLA leave due to economic conditions or other changes in operating conditions of the employer that are caused by a public health emergency during the period of leave.
- The Act authorizes the Department of Labor to write regulations allowing employers with fewer than 50 employees to be exempt if complying with the law’s requirements “would jeopardize the viability of the business as a going concern.” The conditions of such exemptions are not yet known; the Department of Labor should be writing regulations for employers to follow.
- Employers may claim a tax credit up to the $511/day and $200/day maximum amounts. The credits will be claimed against taxes imposed under Internal Revenue Code Section 3111(a), the employer portion of Social Security taxes. Any amount that an employer overpays will be repaid by the federal government like a tax refund. We recommend contacting your payroll service or accountant for advice about the mechanics of how to claim this tax credit, including adjustments to payroll processing beginning on April 1, 2020.
In the week since the FFCRA was enacted, the Department of Labor has issued FAQs and guidance on myriad issues about the application of the law. Below are just some of the issues that have been clarified. Employers may wish to visit the DOL guidance page periodically to check for additional updates.
Counting employees. Employers should count their employees by counting the total number of full-time and part-time employees within the United States (and its territories and possessions) on the date when the employee’s leave is to be taken. Employees on leave, temporary employees, and day laborers are included in the count; independent contractors are not. (DOL FAQ 2).
Closure caused by Gov. Inslee’s Stay Home—Stay Healthy Proclamation. A stay-at-home order like the one presently in effect in Washington State does not constitute a “Federal, State, or local quarantine or isolation order related to COVID-19," so employees who are unable to work solely because of the governor’s order are not eligible for FFCRA benefits. (DOL FAQ 23-27).
Small business exemption. (DOL FAQ 4, 58, & 59) Businesses with fewer than 50 employees can claim an exemption from certain (but not all) of the paid sick leave and expanded FMLA requirements. A small business may claim this exemption if an authorized officer of the business has determined that:
- The employer employs fewer than 50 employees;
- Leave is requested because the child’s school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons; and
- An authorized officer of the business has determined that at least one of following applies:
- The provision of paid sick leave or expanded family and medical 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 or employees requesting paid sick leave or expanded family and medical 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; or
- There are not sufficient workers who are able, willing, qualified, and available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Cumulative FMLA use. The FMLA expansion provides a new reason that employees may take FMLA leave, but does not increase the total amount of FMLA leave that an eligible employee may use in a 12-month period. If an employee has already used FMLA for a qualifying reason in the 12 months before requesting FMLA under the FFCRA, the total amount of leave available is reduced by the amount of FMLA they have already used. If the employee takes FMLA under the FFCRA, the amount of FMLA they have available for other qualifying reasons over the 12 months after their FFCRA leave will be reduced by the amount used. (DOL FAQ 44 & 45).
Intermittent leave. FFCRA sick leave and FMLA leave can be taken intermittently only if the employer agrees. The Department is supportive of voluntary arrangements that combine telework and intermittent leave, and permit intermittent leave to be taken in any increment, provided the employer and employee agree. The guidance gives the example of an agreement to a 90-minute increment, facilitating telework from 1:00 PM to 2:30 PM, taking leave from 2:30 PM to 4:00 PM, and then return to teleworking. For employees working at their usual jobsite, paid sick leave must be taken in full-day increments for all qualifying reasons and with one exception, must be taken consecutively until the reason for leave no longer exists. Leave for childcare must still be taken in full-day increments, but can be taken non-consecutively, if agreed to by the employer. (DOL FAQ 20, 21, 22).
Leave availability during furloughs or temporary closure. FFCRA leave is only available to workers whose work is operating, whether at the usual workplace or through telework, when a worker cannot perform their work duties because of one of the qualifying reasons listed above. If a worker is without work or income because of a furlough or because the workplace is closed, whether the closure is a business decision or one imposed by a government directive such as Washington’s Stay Home—Stay Healthy Proclamation, then the worker should apply for unemployment compensation rather than for FFCRA paid leave benefits. (DOL FAQ 23-29).
Supplemental pay during leave. An employer may not require an employee to use other accrued paid leave concurrently with FFCRA leave, but may allow an employee to opt to use such accrued leave to supplement the FFCRA payment up to the amount of the employee’s normal earnings. An employer may also pay its employees in excess of FFCRA requirements, but cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits. (DOL FAQ 31-34).
The information in this article is current through April 1, 2020. Please contact Sarah Wixson, Aviva Kamm, Krista Slosburg, or any member of our Employment Group for up-to-date information after that date.
For additional details about the FFCRA, please see a more recent post here.