Wyatt Employment Law Report

Questions and Answers for Employers About the Families First Coronavirus Response Act (FFCRA)

By Mitzi Wyrick

The FFCRA amended the Fair Labor Standards Act (FLSA) to include Emergency Paid Sick Leave, which provides Emergency Paid Sick Leave to employees who meet certain criteria during the COVID-19 pandemic.  In addition, the FFCRA expanded the Family and Medical Leave Act (FMLA) to provide public health emergency leave for a qualifying need to employees who satisfy the stated requirements.

Employees are eligible for Emergency Paid Sick Leave if:

  1. The employee is subject to a Federal, State, or local quarantine;
  2. The employee has been advised by a health care provider to self-quarantine;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to either paragraphs (1) or (2);
  5. The employee is caring for a child whose school or place of care has been closed or unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services.

Expanded FMLA leave is available if the employee is unable to work (or telework) because they must care for a child (under 18 years of age) whose school or care provider is closed or unavailable due to a coronavirus emergency as declared by a Federal, State, or local authority.

When does the FFCRA become effective and how long does it last?

The FFCRA becomes effective April 1, 2020 and is effective until it expires on December 31, 2020.

How long does an employee have to be employed to be eligible for leave?

Any employee of a covered employer is eligible for Emergency Paid Sick Leave, regardless of how long they have been employed.  Employees are eligible for expanded FMLA public health emergency leave (as opposed to other types of leave under the FMLA) if they have been employed for 30 calendar days.

Does the 30-day eligibility requirement apply only to the expanded FMLA leave?

Yes.  Employees must be employed for 30 days for the expanded FMLA leave.  For other types of FMLA leave, employees must be employed for one year and have worked 1250 hours.

Which employers does the FFCRA apply to?

The FFCRA applies to private employers with fewer than 500 employees and certain public employers.

How are employees counted?

Employers must have fewer than 500 full-time and part-time employees within the United States.  Employees on leave, temporary employees who are jointly employed by you and another employer, and day laborers supplied by a temporary agency are included.  Independent contractors are not included.

Are employees aggregated among related companies to reach the 500 employee limit?

A corporation, including its separate establishments or divisions, is considered to be a single employer whose employees count toward the 500-employee limit.  If a corporation has an ownership interest in another corporation, the two corporations are separate unless they are joint employers under the Fair Labor Standards Act.  If they are joint employers, all of their common employees must be counted toward the 500-employee limit.  In addition, if two or more entities meet the integrated employer test under the FMLA, then employees of all entities making up the integrated employer will be counted in determining coverage under the FFCRA.

If a corporation is seeking loans under the payroll protection loan program, unless the business is in the accommodation and food services sector, the Small Business Association (SBA) will apply a test to determine if the companies are affiliated. These SBA tests generally will combine employees of affiliated entities when a third party controls (or has the power to control) affiliates or when the majority owner of an entity controls (or has the power to control) that entity.

How much are employees paid under the FFCRA?

Emergency Paid Sick Leave.  Full-time employees are entitled to 80 hours of paid leave while part-time employees are entitled to paid leave for the average hours that the employees works over a two-week period.   Employees taking paid sick leave because they are subject to a quarantine or isolation order, have been advised by a health care provider to self-quarantine, or are experiencing coronavirus symptoms and seeking medical diagnosis are entitled to be paid at their regular pay rate or at the federal, state or local minimum wage, whichever is greater, but not to exceed $511 per day, or $5,110 in the aggregate.  Employees taking paid sick leave to care for another individual or child are entitled to be paid at two-thirds their regular rate, not to exceed $200 per day, or $2,000 in the aggregate.

Expanded FMLA Leave.  The first 10 days is unpaid, but an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave under section 102(a)(1)(F) in accordance with section 102(d)(2)(B). An employee may also use emergency paid sick leave for the first 10 days.  After 10 days, paid leave is based on no less than 2/3 of an employee’s regular rate of pay and number of hours normally scheduled to work  but cannot exceed $200 per day and $10,000 in the aggregate.

What does “caring for an individual” mean?

The temporary regulations define caring for an individual to mean an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined. For this purpose, “individual” does not include anyone with whom the employee has no personal relationship.

Who is a child care provider?

  • “Child care provider” is defined as a provider who receives compensation for providing child care services on a regular basis. The temporary regulations at 29 C.F.R. §826.10 state that the  term includes a centerbased child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law. Despite the fact that the FFCRA defines child care provider as one who receives compensation, the temporary regulations state that the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.

What is a qualifying reason for expanded FMLA leave?

An employee may take expanded FMLA leave if he or she is unable to work because of a need to care for a son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.  An eligible employee has a need to take expanded FMLA leave for this purpose only if no suitable person is available to care for his or her son or daughter during the period of such leave.

What if the workweek for my employees is 37.5 hours?  Do they receive more than 12 weeks of paid leave? 

No.  Twelve weeks is the maximum amount of paid leave that an employee can receive under the FFCRA.

Can an employer require an employee to use other paid leave before using Emergency Paid Sick Leave?

No.  Employers cannot require an employee to use other paid leave before using the emergency paid sick time under the FFCRA.

If an employee is receiving a reduced amount for Emergency Paid Sick Leave or expanded FMLA leave, can it be supplemented with any existing leave an employee has? 

Yes, if the employer agrees and the supplement consists of existing paid vacation, personal, medical or sick leave that the employee has already earned or accrued up to the employee’s normal earnings. The employee cannot be required to use any existing paid leave to supplement their emergency paid sick leave or expanded FMLA leave.  An employer is not entitled to any tax credits for any payments that exceed the amount provided under the Emergency Paid Sick Leave Act or Emergency Family and Medical Leave Expansion Act.

Does an employee have to provide notice that he or she needs Emergency Paid Sick Leave?

After the first work day that an employee receives Emergency Paid Sick Leave, he or she must follow “reasonable notice procedures” to continue receiving Emergency Paid Sick Leave.

Does health care coverage continue while on paid leave?

Yes, so long as the employees are on qualified leave under the FFCRA, the employer must maintain coverage during the leave period. Employees are generally still required to make any normal contributions to the cost of the health care coverage while on such leave.

Do employees have a right to be restored to their position after taking expanded FMLA leave?

Yes, unless the employer has fewer than 25 employees.  Then, if the position no longer exists due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency, the employer must make reasonable efforts to restore an employee to an equivalent position in terms of benefits, pay and terms and conditions of employment.  If that is not possible, then the employer must make a reasonable effort to contact the employee if an equivalent position becomes available over the next year beginning on the earlier of when the public health emergency concludes or 12 weeks after the date on which leave begins.

If a stay-at-home or shelter-in-place order is issued by a Federal, State, or local government and employees are unable to come to work, do employers have to offer Emergency Paid Sick Leave? 

The temporary regulations provide that a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause an employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.  An employee subject to a quarantine or isolation Order may take Emergency Paid Sick Leave if, but for being subject to the order, he or she would be able to perform work that is otherwise allowed or permitted by his or her employer, either at the employee’s normal workplace or by telework. An employee subject to a quarantine or isolation order may not take Emergency Paid Sick Leave where the employer does not have work for the employee as a result of the order or other circumstances.

If a Federal, State, or local government issues an order requiring individuals who have traveled to self-quarantine for 14 days, does an employer have to pay Emergency Paid Sick Leave?

Yes.  An order from a federal, state, or local government requiring individuals to quarantine would likely entitle them to Emergency Paid Sick Leave.

Are employees who are laid off (either before April 1st or after) entitled to paid leave?

No. A layoff for lack of work does not qualify an employee for benefits under the FFCRA, even if the lack of work is due to COVID-19.  This is true whether an employer closes due to lack of business or because it is required to close pursuant to a Federal, State, or local directive.

If an employer closes while employees are on Emergency Paid Sick Leave or expanded FMLA leave, do the employees continue to receive paid leave? 

No.  As of the date an employer closes its worksite, employees are no longer entitled to Emergency Paid Sick Leave or expanded FMLA leave, regardless of whether the closure is due to lack of business or pursuant to a Federal, State or local directive.

If an employer reduces scheduled work hours, can employees use Emergency Paid Sick Leave or expanded FMLA leave for the hours that were eliminated? 

No. If an employee’s work hours are reduced because of lack of work, an employee is not eligible to use Emergency Paid Sick Leave or expanded FMLA leave.

Can an employee receive unemployment insurance at the same time he or she is receiving Emergency Paid Sick Leave or expanded FMLA leave?

No. Typically an employee who is still being paid by an employer is not eligible for unemployment benefits.

Can an employee take 80 hours of paid sick leave for self-quarantine and then take sick leave again for another reason under the Emergency Paid Sick Leave Act?

No. An employee is entitled to only 80 hours of paid sick leave for any combination of qualifying reasons.

Is all leave under the FMLA now paid leave?

No. The only type of FMLA leave that is paid is expanded FMLA leave under the FFCRA when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

What documentation or records does an employer need for Emergency Paid Sick Leave or expanded FMLA leave?

To claim the tax credits, maintain documentation required by the IRS, which is expected to issue guidance on the documentation required.  For expanded FMLA leave, employees should provide certification as they do for a regular FMLA leave request. The documentation could include a notice of closure posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.

Before taking Emergency Paid Sick Leave or expanded FMLA leave, an employee is required to provide his or her name, the date(s) for which leave is requested, a qualifying reason for the leave, and an oral or written statement that the employee is unable to work because of the qualifying reason for leave.

For Emergency Paid Sick Leave, depending upon the reason for leave, an employee must also provide the name of the government entity that issued the quarantine or isolation order; the name of the health care provider who advised the employee or individual the employee is caring for to self-quarantine due to concerns related to COVID-19 and the individual’s name and relation to the employee if the reason for leave is not for the employee’s own care.  In the case of need for leave to care for a son or daughter, the employee must provide the name and age of the son or daughter being cared for along with the name of the school, place of care, or child care provider that has closed or is unavailable and a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Emergency Paid Sick Leave or expanded FMLA leave.  With respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.  The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Can Emergency Paid Sick Leave or expanded FMLA leave be taken intermittently?

Yes, if the employer agrees to it and if the employee is unable to work or telework a normal schedule due to a qualifying reason, such as caring for a son or daughter whose school has closed or child care provider is unavailable, leave can be taken intermittently.  Leave must be taken in full day increments unless an employee is teleworking, then it may be taken in any increment agreed upon by the employer.

Leave cannot be taken intermittently for employees subject to a quarantine or isolation order, employees self-quarantining on advice of a health care provider, employees experiencing symptoms of COVID-19 who are seeking a medical diagnosis, or employees caring for an individual who is quarantined or self-isolating.

Are there any exemptions from the FFCRA?

Healthcare providers and emergency responders can be excluded from the paid leave requirements of the FFCRA.

Small businesses with fewer than 50 employees may be excluded from the expanded FMLA provisions if providing paid FMLA leave would jeopardize the viability of the business as a going concern.

When does the small business exemption apply to exclude a small business from the expanded FMLA leave?

An employer with fewer than 50 employees is exempt 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.

How does a small business take advantage of the small business exemption?

Document why your business with fewer than 50 employees meets the criteria for exemption but do not send anything to the Department of Labor.

Who is a “health care provider” who can provide advice to self-quarantine due to concerns related to COVID-19 to qualify for Emergency Paid Sick Leave?

A “health care provider” who can advise individuals to self-quarantine due to concerns related to COVID-19 is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Who is a “health care provider” that may be excluded by an employer from Emergency Paid Sick Leave or expanded FMLA leave? 

The DOL has stated that a health care provider that can be exempted from the paid leave requirements is 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 definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. Health care provider also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

Who is an emergency responder that can be excluded from the paid leave requirements of the FFCRA?

An emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as, individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Do I need to post notice of the FFCRA and what if most of my employees are working remotely?

Employers must post a notice, which is available at the Department of Labor’s website, https://www.dol.gov/agencies/whd/posters, in a conspicuous place at the worksite.  The notice can be mailed or emailed or posted on an employee or company website.

What if I have recently laid off employees?  Do they receive notice of the FFCRA? 

No, the notice requirements apply only to current employees, including any new hires.

What is the deadline for posting the notice? 

April 1, 2020. 

Are rehired employees eligible for paid leave under the FFCRA?

The  Coronavirus Aid, Relief, and Economic Security (CARES) Act mandates that a rehired employee qualifies for paid FMLA leave upon rehire if the worker:

  • was laid off by that employer on or after March 1, 2020, and
  • had worked for the employer for at least 30 of the last 60 calendar days prior to his or her layoff.

How Will Employers Pay for the Paid Leave? 

Wages paid as Emergency Paid Sick Leave are exempt from the employer’s portion of Social Security tax and an additional payroll tax credit is allowed for in the amount of Medicare tax paid on those wages.

For expanded FMLA leave, employers receive a refundable tax credit against the employer portion of the Social Security tax equal to 100 percent of qualified family leave wages required to be paid by the employer for each calendar quarter. If the credit exceeds the employer’s total liability for all employees for any calendar quarter, the excess credit is refundable to the employer.

 

 

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