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COVID-19 FFCRA

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Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) is a response to the economic impact of COVID-19. It offers paid sick leave or expanded family and medical leave for specific COVID-19-related to workers who are affected by the pandemic.*

FFCRA pay codes/tax credits have been extended through March 31, 2021.  The tax credit exists but businesses are not “required” to pay employees that do not have accrued sick time. If they do pay them, there is a tax credit for the wages paid.

I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020?

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS. Information can be found on the IRS website.

Last Updated:12/31/20

I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired?

Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

Last Updated:12/31/20

What things should I be thinking about for tracking leaves under FFCRA?

Programmable tracking systems should be updated to account for FFCRA-covered issues such as; the amount of sick leave taken, whether the sick leave qualifies as a serious health condition, the amount of leave taken for caring for an employee’s child if their school or place of care is closed, the amount of leave taken in connection with caring for a family member or other person subject to a quarantine or isolation order, and whether any of these scenarios qualify for paid leave under FMLA or other applicable state or local law.

Tracking also needs to take into account whether an employee has the ability to telework during any leave period and if they are doing so as well as hours worked by non-exempt employees during any leave period or temporary office closure and whether an employee has elected to use any accrued sick or vacation time to supplement benefits provided under FFCRA, or other applicable law.

Last Updated: 4/4/20

What records should an employer keep in connection with leave taken under FFCRA?

Retain copies of all documents provided by employees demonstrating the reason for leave as these will assist in permitting you to claim a tax credit in connection with applicable paid leave taken under FFCRA.  It will be easier to keep on top of these items now as opposed to trying to reconstruct what happened at this time at a later date.

Last Updated: 4/4/20

How does the FFCRA impact my leave policies?

The FFCRA creates new emergency paid sick leave and paid FMLA obligations. As a result, employers will need to amend their PTO and FMLA polices to reflect these new obligations.

Who does FFCRA cover?

The FFCRA covers private employers with fewer than 500 employees in the United States, the District of Columbia, or any Territory or possession of the United States.

Does the FFCRA impact private employers with more than 500 employees?

The FFCRA has no effect on private employers with over 500 employees.

What workers do you count for purposes of the 500-employee cap?

You count all active employees, employees on leave, temporary employees who are jointly employed by you and another employer (such as a staffing company), and day laborers supplied by a temporary agency. This active employee count is based upon the number of employees you, as the employer alone have at your level.  It is not impacted by your relationship with Prestige as your PEO or in any way tied to Prestige’s overall employee count across all clients.

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption 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.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

• employer employs fewer than 50 employees;
• leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons

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

When does the FFCRA apply to private employers?

The FFCRA takes effect on April 1, 2020 and will expire on December 31, 2020.

Where can I find more information about FFCRA?

Families First Coronavirus Response Act: Questions and Answers

COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs

FFCRA- Emergency PAID SICK LEAVE ACT (EPSL)

What Employers are covered under the Emergency Paid Sick Leave Act?

Employers with fewer than 500 employees and public agencies with at least one employee.

If you have several commonly owned companies, will each of them be considered a separate employer or will they be treated as one employer for purposes of the 500-employee threshold?

Generally, separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single employer.

The test for determining whether related companies will be considered a single employer or separate companies is the one used under the FMLA, which can be found at 29 CFR 825.104. Generally, separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single employer. That test considers the following factors: (i) common management; (ii) interrelation between operations; (iii) centralized control of labor relations; and (iv) degree of common ownership/financial control.

Note, however, that taking the position a group of companies is a single enterprise or single employer for purposes of the FFCRA may have implications under other laws that use a similar test.

Who is eligible for paid sick leave under the Emergency Paid Sick Leave Act?

All employees of private employers with less than 500 employees, regardless of how long they’ve been employed. Employees will be eligible if they are unable to work (or telework) because:

1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
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 an order or self-quarantine as described above.
5. The employee is caring for a son or daughter if school or child care is closed/unavailable.
6. The employee is experiencing “any other substantially similar condition” specified by the Secretary of Health & Human Services.

Are employees with summer childcare issues eligible for paid sick leave under the Emergency Paid Sick Leave Act?

The answer is yes, as long as certain conditions are met.  The US DOL has provided updated guidance related to when employees may be eligible for paid family leave under FFCRA when unable to work due to caring for a child whose summer camp or other summertime place of care is closed.  The DOL has made clear that the same reasoning for employees to have the ability to take up to 12 weeks of applicable paid leave caused by childcare issues for school closures applies to the closure of summer camps and the like.

Just as with school and childcare business closures, an employee who requests leave to care for a child based on the closure of a summer camp or similar summer program, must provide the name of the camp or program that would have been the place of care had it not been closed, the name of the child, and a statement that no other suitable person is available to provide care. Of importance here however is that the DOL’s guidance takes into consideration of whether the child applied to or was enrolled in the summer program before it closed, whether they had attended the camp in prior summers, or other evidence suggesting that the child would have been cared for in that environment but for a COVID-19 related closure.

Does the FFCRA impact private employers with more than 500 employees?

The FFCRA has no effect on private employers with over 500 employees.

What workers do you count for purposes of the 500 cap?

You count all active employees, employees on leave, temporary employees who are jointly employed by you and another employer (such as a staffing company), and day laborers supplied by a temporary agency.

What are qualifying reasons for this paid sick leave?

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  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 number 1 or 2 above.
  5. The employee is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.

How much paid leave must employers provide under the Emergency Paid Sick Leave Act?

Full-time employees are entitled to a maximum of 80 hours over a two-week period and part-time employees are entitled to a number of hours equal to the number of hours that the employee works, on average, over a two-week period; however, the benefits are capped at certain amounts per employee.

At what rate of pay must I provide paid sick leave under the Emergency Paid Sick Leave Act?

If an employee is out for the reasons listed below, sick leave must be paid at the employee’s required compensation (as defined below), but is capped at $511/day and $5,110 in the aggregate per employee:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

If an employee is out for the reasons listed below, sick leave must be paid at 2/3 the employee’s required compensation, and is capped at $200/day and $2,000 in the aggregate per employee:

  1. The employee is caring for an individual who is subject to paragraphs (1) or (2).
  2. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
  3. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

An employee’s required compensation shall not be less than the greater of: (1) the employee’s regular rate of pay, (2) the minimum wage rate in effect under Section 6(a)(1) of the FLSA, or (3) the minimum wage rate in effect for such employee in the applicable state or locality where the employee is employed.

What if the employee has other paid leave available?

An employer may not require an employee to use other types of paid leave provided by the employer before the employee uses the paid sick time available under this law.

Do I need to inform employees of their right to take paid sick leave under the Emergency Paid Sick Leave Act?

Yes, employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.

Am I exempt? The act states that Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

An employer with fewer than 50 employees (small business) may be exempt from the mandated paid sick leave (EPSL) or expanded family and medical leave (FMLA+) requirements under FFCRA. A small business may claim this exemption 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; or
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 DOL has stated that these are the ONLY reasons to be exempt.

What are the penalties for failure to comply with the Emergency Paid Sick Leave Act?

Employers who violate this Act shall be considered to have failed to pay minimum wages in violation of the FLSA and be subject to penalties related to such a violation. Willful violations will result in greater penalties; however, the DOL will not bring enforcement actions against private employers for violations of the Act through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

What is the effective date?

The-paid-sick leave provisions take effect April 1, 2020 and expire on December 31, 2020.

Where can I find more information about employer paid leave?

U.S. Department of Labor: Families First Coronavirus Response Act: Employer Paid Leave Requirements

FMLA Insights: DOL Publishes Third Round of FAQs on Paid Leave Law

FFCRA -Emergency Family and Medical Leave Expansion Act (FMLA+)

What is expanded leave under the emergency family and medical leave expansion act?

The Emergency Family and Medical Leave Expansion Act amends the current Family and Medical Leave Act (FMLA), allowing leave for eligible employees who can’t work (or telework) because their minor child’s school or childcare service is closed due to a COVID-19 emergency declared by a federal, state or local authority.

Who is eligible for expanded FMLA leave under the Emergency Family and Medical Leave Act?

Eligible employees include employees who work for an employer with fewer than 500 employees and who have been on the payroll for at least 30 calendar days.

The legislation also allows the secretary of labor to exclude health care providers and emergency responders from the definition of employees who are allowed to take leave.

How many weeks of COVID-19 qualifying FMLA leave do I need to provide? How does this compare with Emergency Paid Sick Leave?

Employees may be eligible for 2 types of leave for a total of 12 weeks of paid leave.

  1. The Emergency Paid Sick Leave covers the first 2 weeks which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless an employee elects to use their existing vacation, personal, or medical or sick leave under normal company policy.

FMLA leave, under the Emergency and Family Medical Leave Expansion Act, covers the subsequent 10 weeks at 2/3 of regular rate of pay for the hours that an employee would have been scheduled to work. The family-leave benefit is capped at $200 a day or $10,000 total. Note: an employee can only receive the additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons.

Do I need to inform employees of their right to take COVID-19 qualifying FMLA leave?

Yes, employers must post this notice and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.

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Is the COVID-19 qualifying FMLA leave job protected?

Yes. However, employers with less than 25 employees may be exempted from protecting the job if the position held by the employee when the leave commenced does not exist anymore due to the economic conditions or other changes in operating conditions of the employer.

The employer must engage in reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

If the employer’s reasonable efforts fail, the employer must contact the employee if an equivalent position becomes available in the one-year period following the date of the public health emergency’s conclusion or 12 weeks after the date when the employee’s COVID-19 FMLA leave commences, whichever is earlier.

What is the effective date?

The expanded FMLA provisions take effect April 1, 2020 and expire on December 31, 2020.

Where can I find more information about FMLA questions?

U.S. Department of Labor: COVID-19 and the Family and Medical Leave Act Questions and Answers

FMLA: Insights DOL Publishes Third Round of FAQs on Paid Leave Law

Where can I find more information about FFCRA?

Families First Coronavirus Response Act: Questions and Answers

COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs

 

 

*The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements.

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