Greetings!
On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (FFCRA). It goes into effect
TODAY, April 1, 2020.
OVERVIEW
The FFCRA applies to employers with fewer than 500 employees. Employers must count all part-time (PT) and full-time (FT) employees in any state or U.S. Territory, employees on leave, and temporary employees who are jointly employed.
There are two parts for employers to know about.
EMERGENCY PAID SICK LEAVE (EPSL)
Under this Act, employers must provide 80 hours of paid sick leave to eligible FT employees, on top of any paid sick leave benefit already provided. Eligible PT employees must be paid the average number of hours normally worked in a two-week period.
There is
NO minimum tenure to be eligible, and the benefit must be available effective today. Employers may
NOT require employees to exhaust other forms of paid leave before using this EPSL. The law remains in effect through the end of 2020.
An employee may use paid sick leave if the employee cannot work for any of the following reasons:
1.
The employee is subject to a federal, state, or local quarantine or isolation order for Coronavirus;
[Note that the current Stay Home Order in California is NOT a quarantine or isolation order.]
2.
The employee is advised by a health care provider to self-quarantine due to Coronavirus concerns;
3.
The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
4.
The employee is caring for an individual who is under a quarantine or isolation order or has been advised to self-quarantine;
5.
The employee is caring for a child whose school or childcare has been closed due to Coronavirus; or
6.
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Eligible employees using EPSL for reasons 1-3 above must be paid their “
regular rate of pay” up to $511 per day and/or $5110 in aggregate. Eligible employees using EPSL for reasons 4-6 must be paid 2/3 of these amounts up to $200 per day and/or $2000 in aggregate. If an employee does not have a set schedule of hours, the calculation should be based on the average number of hours scheduled per day over the six-month period prior to the use of the leave.
Certain healthcare workers and emergency responders may be exempt from these benefits.
EXPANDED FMLA (EFMLA)
Normally the Family and Medical Leave Act only applies to employers with more than 50 employees in a 75-mile radius. The FFCRA provides expanded FMLA benefits in two ways: (1) current FMLA covered employers must now offer EFMLA to all qualified employees, and (2) employers with fewer than 50 employees must now offer the one specific leave provided by this Act. Small employers may request an exemption due to hardship, but as of today, the DOL has not issued guidance on how an employer may apply.
The EFMLA provides
employer-paid leave to employees who cannot work or telecommute because they must care for a child under 18 whose school was closed due to COVID-19. This is the only reason an employee may request the EFMLA. Employees must have 30 calendar days of service with the employer to be eligible.
The leave is for up to 12 weeks and is paid. The first two weeks are unpaid under the EFMLA, however the employee would qualify for EPSL for those first two weeks. After the initial 10 days, the employer must pay the employee 2/3 of her/his regular rate of pay not to exceed $200 per day and $10,000 in the aggregate. Between EPSL and EFMLA, this means the employee may receive up to $12,000 over that 12-week period.
If an eligible employee has already used some of her/his FMLA time off in the preceding 12-month period that the employer uses to calculate eligibility, the employee may only use any remaining time out of the 12-week period. If the employee had previously exhausted all FMLA time, the employee would still be eligible for the 80 hours of EPSL. Intermittent leave may be taken if the employer allows it.
This leave must provide job reinstatement except under specific circumstances. Employers must designate the leave under EFMLA as they would with any other leave. Group healthcare benefits must be continued while on leave.
Certain healthcare workers may be exempt from these benefits.
REFUNDABLE TAX CREDITS
Employers that provide EPSL or EFMLA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you are going to seek reimbursement, you must maintain documentation of the need for the leave. For example, it is permissible to ask an employee for evidence of the school closure. California employers should be aware that while the DOL requires documentation to prove the need for EPSL or EFMLA, the DFEH restricts what employers can and cannot ask employees regarding the need for sick leave.
Proceed cautiously.
ACTION STEPS
1.
Notify your employees of their benefits under the FFCRA by distributing or posting the
required poster in English and
Spanish if appropriate. If employees are working remotely, this may be done via email or access to an online version. Failure to comply with this law is considered a failure to pay minimum wages under the FLSA and subject an employer to
various penalties.
2.
Talk to your payroll provider to set up codes so that any wages paid under EPSL or EFMLA are properly reflected on paystubs.
3.
As employees request usage, identify the reason the employee is not working. If s/he is not working due to a furlough because of lack of work, that is not a qualifier. This
Q&A guidance from the DOL is very helpful.
4.
Use your normal FMLA leave process to designate the leave appropriately. Maintain documents used to certify the need for the leave.
5.
Talk to your CPA about recovering any wages paid under EPSL and EFMLA through tax credits.
We hope you are finding the needed answers to your questions. If we can offer any advice, please
reach out.
