eAlert: Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020. For more updates since this post on March 19, check out:

• FFCRA: New Rule and Guidance from DOL and IRS
• FFCRA Payroll Tax Credits
• Dept. of Labor: FFCRA Frequently Asked Questions
• Mandatory FFCRA Poster
• FFCRA Leave Code Request Form

Updated March 30, 2020:

Required FFCRA Poster

The Department of Labor (DOL) has released a mandatory employee rights poster for the FFCRA. It should be posted or distributed to employees electronically (via email or online portal) by April 1. More information on the requirements can be found here.

Enforcement of FFCRA

The DOL will not bring enforcement actions against employers for violations of the FFCRA prior to April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. You can read more about the brief non-enforcement period here.

New Guidance from the DOL on Administering FFCRA Leaves

We strongly suggest that employers read through the entire Questions and Answers document prior to April 1 so they have an understanding of how the leaves work. The following are some highlights from the updated guidance:

• These leaves are not available to employees with reduced hours, furloughed employees, or employees whose workplaces are closed. See questions 23-28.
• These leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns. See question 23.
• These leaves (and payroll tax credit) are not retroactive. Employees are not entitled to pay under these leaves if they were absent or out of work (for any reasons) prior to April 1. See question 13.
• Both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations. See Questions 20-22 for explanations about when intermittent leave is allowed.
• Employees may not be required to use other forms of paid leave prior to or concurrently with EPSL or EFMLA. See questions 32 and 33.
• Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements will be outlined in soon-to-be-released IRS guidance. See Questions 15 and 16.

Updated March 26, 2020:

The DOL announced the effective date in a “Questions and Answers” document where it also provided answers to some common questions. Other than the April 1 effective date, the information is in line with what we have been advising.

The DOL also released two Fact Sheets, both of which appear to contain the same information, but it’s possible they will each be updated in the future with information that is geared more toward employees or employers.

• Questions and Answers
• Fact Sheet for Employees
• Fact Sheet for Employers

While the links above do not provide much new information, they are worth reviewing. We are still waiting on regulations from the DOL to answer questions about how these leaves will be administered. However, we will post updated information as soon as it is released.

FFCRA Overview

For certain circumstances related to COVID-19, employees will be eligible for:

• Up to two weeks of sick leave (full pay for self, 2/3 pay for family care) for illness, quarantine, or school closures
• Up to 12 weeks of Family and Medical Leave Act (FMLA) leave for school closures (10 days unpaid and then up to 10 weeks at 2/3 pay)

The FMLA and Paid Sick Leave sections discussed below will go into effect on April 1, 2020. These are set to expire on December 31, 2020. At this time, it appears there is no retroactive application.

As of today, there are 4 key elements employers should be aware of under the FFCRA:

1. FMLA expansion
2. Paid sick leave
3. Payroll tax credit
4. Group health plan benefit mandate

Emergency FMLA Expansion

Covered Employers

Employers with fewer than 500 employees are covered.

Covered Employees

Any employee who has been employed for at least 30 calendar days. (However, employers may be able to exclude employees who are health care providers or emergency responders.)

Covered Leave Purpose

To care for a child under 18 of an employee if the child’s school or place of care has been closed, or if the childcare provider is unavailable, due to a public health emergency. A “public health emergency” is defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.

Duration

Up to 12 weeks of job-protected leave.

Compensation

• No pay for the first 10 days of leave. (Other paid time off and emergency sick leave under the FFCRA may be applied.)
• After 10 days, employers must pay two-thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work. FFCRA caps this at $200/day and $10,000 total.

Reinstatement to Position After Leave

The same reinstatement provisions apply as under traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if certain conditions are met:

• The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency;
• The employer makes reasonable efforts to return the employee to an equivalent position; and
• The employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

Note: The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of eligible employees and to exempt small businesses with fewer than 50 employees if business viability is jeopardized.

Emergency Paid Sick Leave

Covered Employers

Employers with fewer than 500 employees.

Covered Employees

All employees (no matter how long they have been employed). However, employers may be able to exclude employees who are health care providers or emergency responders.

Covered Leave Purposes

1. Quarantine or isolation subject to federal, state, or local quarantine/isolation order;
2. When advised by a health care provider to self-quarantine (due to concerns related to COVID-19);
3. When experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. To care for an individual doing #1 or #2 (2/3 pay);
5. When caring for a child whose school or place of care is closed due to COVID-19 (2/3 pay); or
6. If the employee is experiencing any other substantially similar condition (2/3 pay).

Duration of Leave

Full-time employees are entitled to 80 hours of paid sick leave. Alternatively, part-time employees are entitled to sick leave equal to the number of hours worked on average over a typical two-week period.

Rate of Pay

• Sick leave must be paid at the employee’s regular rate of pay for leave used for the employee’s own illness, quarantine, or care.
• If the employee takes leave to care for a family member or child whose school has closed, the employer must pay the sick leave at two-thirds of the employee’s regular rate. This also applies if the employee’s childcare provider is unavailable due to the coronavirus.
• For reasons 1, 2, and 3 above, employee pay is capped at $511/day and $5,110 total.
• Alternatively, for reasons 4, 5, and 6, employee pay is capped at $200/day and $2,000 total.

Interaction with Other Employer-Provided Paid Sick Leave and other Paid Leave

• This act does not preempt existing state and local paid sick leave requirements.
• Employers cannot require employees to use other leave first.
• This emergency sick leave does not carry over from year to year. Further, the requirements expire on December 31, 2020.

Notice Requirements

• Employers must post an FFCRA notice, which can be found here.

Note: The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of eligible employees. Additionally, there may be an exemption for some small businesses with fewer than 50 employees if business viability is jeopardized.

Payroll Tax Credit

• Applies to both the emergency FMLA expansion and the emergency sick leave.
• Dollar for dollar credit for sick leave and paid FMLA wages against the employer portion of Social Security taxes.
• A refund is possible for amounts that exceed what is available as a credit.
• Limits on what can be claimed mirror the caps for what must be paid.

Health Plan Benefit Mandate

• The act requires all insured and self-funded medical plans to cover diagnostic testing-related services for COVID-19 at 100 percent without any deductibles or co-pays. (This includes grandfathered plans.)
• For example, services provided by doctors, emergency rooms, and urgent care centers leading up to the decision whether or not testing is needed.
• Although the actual lab-based testing is covered, the mandate does not apply to treatment.

Read US H.R. 6201.

Future Updates

We know that the weeks to come will bring unexpected challenges for the business community as a whole due to the Coronavirus. However, we are prepared to respond to these challenges as they arise. Additionally, we will continue to provide ongoing communications as more details unfold.

Finally, if you have any questions or concerns, please feel free to contact us at (866) 946.2032 or by emailing our support team. And don’t forget to follow us out on Facebook, Twitter, and LinkedIn for even more Coronavirus and business updates!

Photo by William Fortunato from Pexels