As one of my HR friends recently noted in a Facebook post, the week of March 23 felt like completing a law degree in just 7 days! In this time of pandemic, I have been busy learning a slew of new employment legislations passed by Congress in record time. In today’s post, I’ll share with you what you need to know about the Families First Coronavirus Response Act (FFCRA) and more.
The new laws are designed to provide job-protected leave for employees affected by the public health emergency. As of the writing of this article (March 30, 2020). The Department of Labor (DOL) published FAQs with answers to many questions you may have on how to implement the new leave laws in your business.
Here’s what you need to know about the Families First Coronavirus Response Act (FFCRA). This is a complex piece of legislation with many ramifications. Not all is clear at this time. I have attempted to share with you, in simple language, what I have learned in the past weeks.
It includes two employment-related provisions 1) An expansion of the Family and Medical Leave Act (“FMLA”) and 2) Emergency Paid Sick Leave (EPSL).
FFCRA also includes additional funding for unemployment insurance. Unemployment insurance is managed at the state level. Check your state-resources to learn how unemployment insurance is adapting to the crisis and providing relief to workers who lose their jobs.
Who is Covered By FFCRA Leave Laws?
All companies with fewer than 500 full-time and part-time employees (99.7% of employers in the country) will be covered under the Emergency FMLA and Paid Sick Leave portions of the FFCRA.
Do not be shy! If you have questions on how to handle employee relations in the time of
COVID-19 contact me (email:annelise@gereconsulting.com).
When Will the Law Go Into Effect?
April 1, 2020, and will expire automatically on December 31, 2020.
FMLA EXPANSION
Existing FMLA – Small businesses with less than 50 employees are exempt from the traditional FMLA which provides for up to 12 weeks of unpaid job-protected leave to its employees.
Health Emergency FMLA leave (March 2020) – The FFCRA creates a new category of FMLA leave for employees who are unable to work due to a need to care for a child under the age of 18 if their child’s school or child care provider has been closed or due to COVID-19. This leave doesn’t cover the need for sick leave for the health of the employee.
Employees who have been on your payroll for 30 days or more are eligible for this new category of FMLA.
The first 10 days of such leave will be unpaid. Employees have the option to utilize accrued PTO (if your organization offers it) to be paid during these first 10 days. After the first 10 days, employers must provide paid leave at the rate of at least 66% of the employee’s regular pay rate. Paid leave is capped at $200 per day, and there is an aggregate cap of $10,000 per employee over 10 weeks of leave.
EMERGENCY PAID SICK LEAVE
The FFCRA also provides for up to 10 days of temporary emergency paid sick leave. This leave is available in 6 scenarios:
- Employees who are subject to a
government-mandated isolation/quarantine; - Employees who have been advised by a healthcare provider to self-quarantine;
- Employees who have COVID-19 symptoms and are seeking treatment for it;
- Employees caring for an individual who is either subject to a government-mandated quarantine or was advised by a healthcare provider to self-quarantine;
- Employees caring for their children at home as a result of their child’s school closing; and
- Employees experiencing any other substantially similar condition.
Scenarios 1-3 allow an employee to collect a maximum paid sick leave of $511 per day. Scenarios 4-6 allow an employee to collect a maximum paid sick leave per day of $200 per day.
Anyone employed, without any minimum of service, is eligible for paid sick leave if they fall within one of 6 categories above.
Full-time workers will be eligible for up to 80 hours of paid sick leave. Part-time employees’ eligibility is prorated based on the average number of hours that part-time employee works regularly over a 2-week period. This leave will not carry over into 2021.
FFCRA Leave and Existing PTO – Employers may not require employees to use other paid leave before the employee utilizes this paid sick time. The FAQ provided by DOL states employees have to choose between taking FFCRA leave (FMLA or EPSL) and employer-sponsored PTO. They cannot use both simultaneously. However, employers may agree to supplement the leave amount from EPSL leave or expanded FMLA up to normal earnings with preexisting leave. This is at the employer’s discretion. Be aware of consistency across similarly-situated employees if you make any deviation from the new rules to avoid later charges of discrimination.
How Will Employers Pay For The FFCRA Leave Mandates?
Employers are responsible for paying out leave upfront and will be reimbursed through a tax credit. The Department of Labor issued a release giving details on the payroll tax credits available to reimburse employers who maintain employment through those new job-protected leaves. FFCRA leaves are not considered wages. No federal employment taxes will be collected on such amounts from the employer or the employee.
In a nutshell (and I am not a CPA so double-check with a tax specialist!), employers will be able to retain an amount of the payroll taxes equal to the amount of the leave that they paid, rather than deposit those payroll taxes with the IRS.
Employers can retain withheld federal income taxes, the employee share of Social Security and Medicare taxes and the employer share of Social Security and Medicare taxes with respect to all employees.
If the amount of leave paid out to employees exceeds payroll taxes, employers will be able to file a request for an accelerated refund from the IRS. The IRS states that it expects to process these requests in two weeks or less.
The Status of Home Health Workers
Health care providers and emergency responders are exempt from taking FFCRA leave. Again the DOL FAQs (#56) defines a health care provider as “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 care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” This means that caregivers are EXEMPT from both FFCRA leave laws. This is a victory for the Home Care Association Of America (HCAOA) who lobbied hard to ensure that “home care is part of health care.” This will help agencies manage their workforce pretty much as always from a labor law standpoint.
However, DOL also encourages employers to be “judicious” with their workforce to prevent the spread of the pandemic and allow caregivers who might be sick to avoid contact with their clients.
Notice and Retaliation Requirements
Employers are required to post a conspicuous notice provided by the DOL in their workplace (and virtually, if the physical location is closed) alerting their employees of these new leave provisions.
FFCRA provides that it is illegal to discipline or discharge an employee for taking paid sick leave, or for filing a complaint for non-compliance.
Finally, keep doing your part to help minimize the spread of COVID-19 through social distancing, remote work when possible and requesting sick employees to stay home.
Do not be shy! If you have questions on how to handle employee relations in the time of
COVID-19 contact me at annelise@gereconsulting.com.
I hope you are staying healthy and energized during this uniquely challenging time.
Disclaimer: The information contained in this article is a compilation of information gathered through authoritative sources, and doesn’t constitute legal advice (I am an HR pro, not an attorney!) and was written on March 30, 2020.
