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Guidance to Understand Application of FFCRA

03.26.20

Families First Coronavirus Response Act (H.R. 6201)
Enacted March 18, 2020 – takes effect April 1, 2020
Expires December 31, 2020

Covered Employers

  • A private employer with fewer than 500 employees:
    • When to count employees?  Snapshot of “live” employee headcount at the time of leave is being requested. For example, if Employee X is granted leave on April 8 and the “live headcount” is under 500, that employee is eligible for leave. If Employee Y requests leave on May 1 and the “live headcount” on that day is over 500, leave will be denied. Employee X will continue to be eligible for their current leave.
    • Who is counted as an employee?  All U.S. employees, including seasonal, temporary (even if they are paid through a temp agency), full and part-time employees. Independent contractors are not included.
    • Exception:  Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to closings or child care unavailability if the leave requirements jeopardize the viability of the business public agency (federal/state governments, political subdivisions, schools).

Overview of Paid Leave Provisions

Emergency Paid Sick Leave

  • Up to 80 hours of paid sick leave for full-time employees:
    • Part-time employees receive the average number of hours worked over a two-week period. Part-time employees with variable work weeks (i.e., per diems) they receive the average number of hours worked in the previous six months.
  • Eligibility: Eligible on day one of employment.
  • The employee is unable to work or telework for the following reasons:
    1. Employee is subject to a federal, state or local government or agency quarantine or isolation order related to COVID-19 (Shelter in Place order qualifies if employee has paid hours if able to report to work).
    2. Employee is advised by a healthcare provider to self-quarantine because of COVID-19.
    3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis,
    4. The employee is caring for an immediate family member, someone who regularly lives in employee’s house, or roommate who is subject to scenarios 1 and 2 above.
    5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable due to COVID-19 precaution Justification now required for child (ren) > 14 during daylight hours. A childcare provider can include an unpaid family member or friend.
    6. The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. Note: This qualifying reason has not yet been addressed.
  • How much will the employee be paid:
    • In scenarios 1 through 3, employees will be paid 100% at their regular rate of pay, with a maximum of $511/day ($5,110 in total).
    • In scenarios 4 through 6, employees will be paid two-thirds of their regular rate of pay, with a maximum of $200/day ($2,000) total.
  • Sequencing the leave:
    • Employers cannot require their employees to use current company-provided accrued sick leave before the EPSL.
    • The 80 hours of EPSL is in addition to what the company already provides.
    • If an employee is not receiving 100% of the EPSL due to reasons 4 through 6 above, they may use company-provided accrued vacation/sick leave to be paid at 100%.

Emergency Paid FMLA

  • Employees can take leave for 12 weeks for one reason: When an employee is unable to work or telework to care for a minor child if the child’s school or place of childcare has been closed or is unavailable due to a public health emergency.
  • Eligibility: Any full-time or part-time employee who has been on the employer’s payroll for 30 calendar days.
  • How this works:
    • The first 80 hours (two weeks) are unpaid EFMLA, but an employee has their EPSL (reason #5 above) paid at two-thirds of their wages during that time. Both EPSL and EFMLA will run concurrently.
    • The remaining 10 weeks are paid at two-thirds of the employee’s regular rate of pay, for the number of hours the employee would otherwise by scheduled to work. The maximum payment is $200/day and $10,000 total.
  • Job Protection: EFMLA is job-protected like the classic FMLA. Employees must be restored to the same or equivalent position upon their return to work.
    • There is an exception for employers with fewer than 25 employees – if employee’s position no longer exists following leave due to operational changes caused by a public health emergency. The employer must make reasonable efforts to contact a displaced employee for up to one year after the employee is displaced if an equivalent position becomes available.
  • Previous FMLA Use: If the employer was covered by the FMLA prior to April 1, 2020, eligibility for EFMLA depends on how much leave was taken during the 12-month period that the employer uses for FMLA leave. In this case, employees may take a total of 12 workweeks for FMLA and/or EFMLA during a 12-month period. If an employer only becomes covered under the FMLA on April 1 2020, this analysis does not apply.

NOTE:  All leave under EPSL and EFMLA must be due to COVID-19 and is not available if employee is able to work remotely.

Tax Credits for EPSL and EFMLA

  • Employers can take a refundable tax credit equal to 100% of qualified paid EPSL and EFMLA.
  • Employers keep a portion of the deposit they otherwise would pay as part of their employee’s federal, social security and Medicare taxes. Employers can retain and will not be required to deposit these funds.

FAQ

Are there any requirements to post employee rights with the new emergency bill?

Employers will be required to post the notice where other state/federal postings are located. If the worksite is closed, employers may email, mail or post the notice on an employer’s website or intranet.

How do we document usage of EPSL or EFMLA?

It is suggested that a separate payroll code is created to be able to distinguish between regular company-provided sick leave and FMLA, and emergency sick and FMLA.

How should an employee substantiate the need to use EPSL or EFMLA?

Employers need documentation (preferably in writing) of the employee’s name, dates the leave is requested, qualifying purpose and written supporting documentation for leave, statement that qualifying purpose makes the employee unable to work (including remote work).

Should we be asking for doctor notes for EPSL or notes from schools or daycare providers for EFMLA?

If you intend to claim a tax credit under the FFCRA for your payment of EPSL or EFMLA wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service 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. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

For school closures and childcare-related need for leave, the DOL indicates that additional documentation may be required beyond what “conventional” FMLA allows – such as a notification of such school closure, etc. But all indications seem to suggest that for medically necessary reasons for COVID-19 EPSL scenarios 1, 2, 3, 4, and 6 noted above, employers may still request appropriate supporting documentation, although given current realities, employers may find they need to, as a practical matter, relax traditional documentation standards they might impose under normal circumstances.

Can employees use EPSL and EFMLA leave intermittently?

Yes If the employer allows it and if the employee is unable to telework their normal schedule due to one of the qualifying reasons in the EPSL Act. In that situation, the employee and employer may agree that EPSL can be taken intermittently while teleworking only. Similarly, if an employee is prevented from teleworking their normal schedule because of a need to care for their child whose school or place of care is closed, or childcare provider is unavailable because of COVID-19 related reasons, the employee and employer may agree that EFMLA can be taken intermittently.

Intermittent leave can be taken in any increment, provided employee and employer agrees. The DOL encourages employers and employees collaborate to achieve flexibility and meet mutual needs.

For employees who are working at their usual worksite as opposed to teleworking, for qualifying reasons related to COVID-19, time off must be taken in full-day increments and cannot be taken if the leave is being taken for EPSL scenarios 1, 2, 3, 4, and 6 noted above. Unless an employee is teleworking, once they begin taking paid sick leave for one or more of these qualifying reasons, they must continue to take paid sick leave each day until either (1) they use the full amount of paid sick leave or (2) they no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if someone is sick or possibly sick with COVID-19, or caring for an individual who is sock or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep employees from spreading the virus to others.

Can an employer require employees use their accrued vacation/PTO/sick leave to integrate with EPSL or EFMLA?

No. Both the employer and employee must agree to use any accrued vacation/PTO or sick leave.

How does an employer calculate the regular rate of pay?

Instead of using the workweek in which employees use leave, employers must use a six-month look back period, or the entire period of employment, whichever is shorter. Alternatively, employers can use this period and divide the average weekly regular rate by the number of hours worked each workweek.

How long does an employer need to maintain documentation and information related to FFCRA?

To comply with the FFCRA’s paid leave mandates, employers must retain documents and information regarding EPSL and EMFLA for four years, regardless of whether they grant or deny leave. Moreover, if the employee provides oral statements only, it is the employer’s responsibility to document those oral statements and associated information for its records for the 4-year period. Employers that decide to deny EPSL or FMLA based on the small employer exemption, must document the determination by their authorized officer that the organization is eligible for the exemption based on the criteria the regulations establish.

To qualify for the tax credits the IRS administers, the DOL states that employers must maintain, for four years:

  • Documentation to show how the employer determined how much EPSL or EFMLA was paid to employees (including records of actual work performed, telework, and paid leave credits);
  • Documentation to show how the employer determined the amount of qualified health plan expenses that were allocated to wages; and
  • Copies of any completed IRS Forms 7200 (Advance Payment of Employer Credits Due to COVID-19) that the employer submitted to the IRS, and the completed IRS Forms 941 (Employer’s Quarterly Federal Tax Return) that the employer submitted to the IRS (or, if applicable, records provided to a third-party payer to meet an employer’s employment tax obligations/entitlement to the credits claimed on IRS Form 941).

Can an employee file for state disability or Paid Family Leave related to COVID-19?

Yes. With proper medical documentation, an employee can file a state disability claim for their own illness or they can file for paid family leave if they are taking care of a member of their family who is ill or who is quarantined by COVID-19. Both cases would require medical documentation. The one week unpaid waiting period for benefits has been waived.

How does state disability and paid family leave payments work with EPSL?

Employees can use their 80 hours of EPSL to supplement their disability payments.

When can an employee file for unemployment?
If an employee’s child’s school is closed and they have to miss work to be there for them, they may be eligible for unemployment insurance benefits. Eligibility considerations include if they have no other care options and are unable to continue working remotely. In addition, if an employee loses their job or their hours are reduced, through no fault of their own, they may apply for unemployment insurance benefits. If the employee is temporarily unemployed due to COVID-19 and expected to return to work within a few weeks, the employee is not required to actively seek work each week. They must remain able and available and ready to work. The one-week unpaid waiting period has been waived.

What is the difference between a furlough, a layoff, and a reduction in force?

A furlough is considered to be an alternative to a layoff. When an employer furloughs its employees, it requires them to work fewer hours or to take a certain amount of unpaid time. Care needs to be taken when furloughing exempt employees. If any work is performed in a workweek, the employee needs to be paid their full salary for that week. To avoid payment, the furlough should be for a full workweek.

A layoff is a temporary separation from payroll. An employee is laid off because there is not enough work for them to perform. The employer believes this condition will change and intends to recall the person(s) when work again becomes available.

A reduction in force occurs when a position is eliminated without the intention of replacing it and involves a permanent cut in headcount. A layoff may turn into a RIF. A RIF can be accomplished by terminating employees or by means of attrition.

Can we reduce an employee’s wages rather than laying them off?

Yes. As an example, if an employer moves to a four-day workweek, salaries can be reduced by 20%. For hourly employees, they will be paid for the four days. They may apply for unemployment insurance benefits for the 20%.

For exempt employees, their salary can be reduced as long as they are above the salary test to stay exempt. If they fall below the threshold, they become non-exempt and will need to track their time and meal periods.

How much notice do we need to give employees if we are doing a furlough or layoff?

If an employer with 75 or more employees “lays off” 50+ employees, this triggers the WARN Act. In California, the Warn Act 60 day notice has been relaxed. Employers still need to give notice to employees and the EDD as soon as practical. The notice must contain the statement “If you have lost your job or been laid off temporarily, you may be eligible for unemployment insurance. More information on unemployment insurance and other resources are available at https://www.labor.ca.gov/coronavirus2019/.

If we do a furlough or layoff, do we have to pay employees for EPSL or EFMLA?

No, they will not be eligible if they are not on active status.

Must an employer continue health coverage if an employee takes EPSL or EFMLA?

Yes. An employee is entitled to continued group health coverage on the same terms as if they continued to work. The employer must maintain coverage during EFMLA but may require employees to continue to make their normal contributions to the cost of their health coverage.

Can we withdraw an offer of employment if work has slowed down?
Yes.

What do we do if an employee has COVID-19?

Follow the CDC guidance. Employee should isolate at home. Restrict employee travel and implement social distancing. Disinfect the workplace. Determine exposure to others. Manage the absence and pay through state disability, FMLA and the new EPSL and EFMLA.

What do we do if an employee has been exposed to COVID-19?

Per CDC, mandatory 14-day quarantine period. Determine exposure to others. Manage the leave and pay during quarantine period.

If we hired new employees, how do we meet the I-9 requirement to view the documents if our office is closed?

The current requirement to review the documentation in person has been relaxed and employers are not required to view them in person at this time.

If we are an essential employer and an employee is stopped by the police, do we need to provide a letter explaining that we are an essential employer?

Employees in San Francisco, specifically, are beginning to be stopped by police officers questioning why they are out. Employees should explain if they work for an essential employer, if they are going to the grocery store, etc. At this time, a letter of explanation from an employer has not been required.

We are a small employer under 50 employees, what is the criteria for determining if we can be exempt from the FFCRA?

An employer with fewer than 50 employees may claim an exemption from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act if an authorized officer of the business has determined that:

  1. 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;  
  2. 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  
  3. There are not 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, 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.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.