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COVID-19 : Family First Coronavirus Response Act (FFCRA)

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COVID-19 E-Sick and E-FMLA Forms and Administrative Help

Congress.gov – Families First Coronavirus Response Act

Read the FFCRA Bill

W&H Division:

Updated Q&A from the U.S. Department of Labor Wage & Hour Division

Summaries:

FFCRA Posters:

Field Assistance Bulletin:

General Provisions of the Act

Congress.gov – Families First Coronavirus Response Act

Important information and resources from the Department of Labor regarding the FFCRA (added 2020-3-25):

The Families First Coronavirus Response Act, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans and introducing paid sick leave and an expanded family and medical leave act to the nation’s employers has been signed into law and went into effect on April 1, 2020.

This Act includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. There are two provisions providing paid leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law.

Temporary Expansion of Family and Medical Leave

The Act requires employers with fewer than 500 employees to provide up to 12 weeks of job-protected leave, up to ten weeks of which are paid.

  • Leave is for “qualifying need related to a public health emergency.”
    • Qualifying need is defined as to mean “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
    • A “public health emergency” is defined to mean “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”
  • The leave applies to employees who have been employed for at least 30 calendar days, rather than the 12-month period under the current FMLA.
  • The Secretary of Labor has the regulatory authority to exempt employers with fewer than 50 employees if the provision of paid FMLA leave “would jeopardize the viability of the business as a going concern.”
  • Employers with 25 or more employees would be required to reinstate employees after their FMLA leave period ends.
  • Employers with fewer than 25 employers do not have to reinstate an employee if they are experiencing significant economic hardship.
  • The first 10 days for which an employee takes leave could be unpaid leave, or the employee could choose to substitute any accrued vacation, personal or sick leave (including in certain instances the emergency paid “sick” leave described below).
  • After the initial 10 days, the employer would be required to provide paid leave based on an amount that is not less than two-thirds of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. The law caps the amount of the paid leave, per employee to no more than $200 per day or $10,000 in the aggregate.

Temporary Paid Sick Leave Program

The law requires employers to provide full-time employees with up to 80 hours of certain emergency paid “sick” leave related to the coronavirus (with special averaging rules for part-time employees).

  • The paid sick leave can be used in any of the following circumstances:
    • The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
    • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    • The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
    • The employee is caring for a son or daughter where the school or place of care of the son or daughter has been closed or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
    • The employee is experiencing any other substantially similar condition specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Full-time employees are entitled to up to 80 hours of paid leave
  • Part-time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”
  • The required paid leave ends with the employee’s next scheduled work shift following the end of the qualifying need.
  • The required sick pay is calculated based on the employee’s regular rate of pay or, if higher, the applicable minimum wage rate.
  • In the case of leaves to care for a family member or child, however, the required sick pay is based on 2/3rds of the regular rate of pay.
  • For part-time employees whose schedule varies from week to week, special rules apply to calculate the average number of hours.
  • The maximum amount of required sick pay per employee is $511 per day and $5,110 in the aggregate.
  • In the case of leaves to care for a family member of child, however, the maximum amount of required sick pay per employee is $200 per day and $2,000 in the aggregate.
  • An employer is prohibited from requiring employees to look for or find replacement employees to cover the hours during which the employee is using the paid sick time.

Refundable Tax Credits to Pay for Leave

H.R. 6201 provides provide a series of tax credits to those employers subject to expanded FMLA and emergency paid “sick” leave requirements.

  • The employer-related credits, which are refundable, would be applied against the employer portion of Social Security taxes for each quarter equal to the “qualifying” paid leave wages paid by the employer.
  • The tax credits would apply with respect to both the FMLA-expanded paid leave as well as the emergency paid “sick” leave.
  • The amount of the tax credits varies based on the type of leave.

Tax Credit for Expanded FMLA Leave

  • H.R. 6201 would provide employers a refundable tax credit equal to 100 percent of the “qualified family leave wages” that the employer is required to pay for a given quarter under the Expanded FMLA Leave.
  • The amount of the qualified family leave wages that would be taken into account for purposes of the credit per employee is $200 for any day for which the employer pays the employee qualified family leave wages, up to a maximum amount for all calendar quarters of $10,000 per employee.

Tax Credit for Emergency Paid “Sick” Leave

H.R. 6201 would provide employers a refundable tax credit equal to 100 percent of “qualified sick leave wages” that the employer is required to pay for a given quarter under the Emergency Paid Sick Leave Act.

  • The amount of qualified sick leave wages for purposes of the credit would vary depending upon the reason for the leave.
  • For employees who must self-isolate, obtain a coronavirus diagnosis or comply with a self-isolation recommendation from a public official or health care provider, the amount of qualified sick leave wages taken into account is capped at $511 per day.
  • The bill also allows for an increase in the amount of the tax credit equal to the amount “of the employer’s qualified health plan expenses as are properly allocable to the qualified family [or sick] leave wages for which such credit is allowed.”
  • The tax credit would apply to wages the employer pays between (1) a date that the Secretary of the Treasury must specify within 15 days after the date of enactment and (2) December 31, 2020.

Free Coronavirus Testing

H.R. 6201 would require that group health plans and health insurance issuers of group to cover FDA- approved COVID-19 diagnostic testing products.

  • Cost covered include the items and services furnished during a provider visit (office, telehealth, urgent care and emergency room) to the extent those items and services relate to the furnishing or administration of the testing product or the evaluation of the individual’s need for the testing
    product.
  • The mandated coverage must be provided without “any cost sharing (including deductibles, copayments and coinsurance) requirements or prior authorization or other medical management requirements.
  • The requirement to cover COVID-19 testing costs starts from the date of enactment until the
    Secretary of HHS determines that the public health emergency has expired.

Changes to FFCRA

Source: Fisher Phillips LLP

The CARES Act also makes several changes to the recently enacted FFCRA. Most employers all already familiar with the provisions of that law, which establishes new paid leave requirements as part of new Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave requirements. The DOL recently announced that those new leave requirements will go into effect on April 1, 2020. Most of the changes to the FFCRA are technical and clarifying in nature.

The CARES Act adds new language to the EFMLA to address leave entitlement under that provision for “rehired employees.” The new language states that for purposes of the EFMLA, the term “employed for at least 30 calendar days” includes an employee who was laid off on or after March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to their layoff, and was rehired. Essentially, this provides that rehired employees who meet those criteria will be eligible for EFMLA without having to “restart the clock” on the 30-day requirement.

Families First – Emergency Family and Medical Leave Expansion

·        Expanded Coverage and Eligibility – The Act significantly amended and expanded FMLA on a temporary basis. The current employee threshold for FMLA coverage changed from only covering employers with 50 or more employees to instead covering those employers with fewer than 500 employees. It also lowered the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave is eligible to receive paid family and medical leave (under qualifying conditions). The law allows the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. 

  • Reasons for Emergency Paid FMLA Leave – Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is the only qualifying need for Emergency FMLA . 
  • Paid Leave – The first 2 weeks of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The law limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee. 
  • Calculating Pay for Non-Full Time Employees – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. 
  • Job Restoration – Employers with 25 or more employees have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.
  • Effective Date and Expiration – This program became effective April 1, 2020 and remains in effect until December 31, 2020. 

Emergency Paid Sick Leave

·        Reasons for Paid Sick Leave –This law allows an eligible employee to take paid sick leave because the employee is: 

1.  subject to a federal, state or local quarantine or isolation order related to COVID-19; 

2.  advised by a health care provider to self-quarantine due to COVID-19 concerns; 

3.  experiencing COVID-19 symptoms and seeking medical diagnosis; 

4.  caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; Caring for another who is subject to an isolation order or advised to self-quarantine as described above is not limited to just family members.   

5.  caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 

6.  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.

·        Eligibility – This provision requires employers to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with up to 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above). There is an exception for employers who are healthcare providers or emergency responders at their election.

  • Cap on Paid Sick Leave Wages –Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
  • Carryover and Interaction with Other Paid Leave – This paid sick leave will not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.
  • Calculating Rate of Pay – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period.
  • Effective Date and Expiration – This program became effective April 1, 2020 and remains in effect until December 31, 2020. 

Tax Credits For Paid Sick And Paid Family And Medical Leave

The law provides a series of refundable tax credits for employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. These tax credits are allowed against the employer portion of Social Security taxes. While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe.

Specifically, employers are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with the Emergency Paid Sick Leave Act. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter. 

Similarly, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by employers for each calendar quarter in accordance with the Emergency Family and Medical Leave Expansion Act. The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter. Only those employers who are required to offer Emergency FMLA and Emergency Paid Sick Leave may receive these credits.

Yes, whether an employee uses the paid sick or the paid FMLA, the employer pays through their own payroll.  There is an employer tax credit built into the legislation so hopefully the company would recoup that payment through the tax credit.

Q. We have a total of eight (8) employees counting myself. Do I have to pay FMLA?

  • A. Yes, if an active employee were to go out due to a COVID qualifying event, your company would be responsible to pay 2/3 salary for up to 10 weeks of leave.

Q. Do I have to Pay sick leave?

  • A. Yes, if an active employee were to go out due to a COVIC qualifying sick event (including needing to provide child care), your company would be responsible to pay 100% of  the prior wage for their own care and 2/3 of the prior wage up to a maximum of $200 per day for the care of others- again COVID qualifying conditions.

    There is a provision in the new legislation for small employers to claim hardship and somehow be exempted from the paid FMLA and sick requirements, but we don’t know how or what the criteria is at this time.

Q. We are doing our best to keep our door open for the Health Care community to provide our patients the best healthcare during this crises but is getting difficult when we are seeing less and less patients. Yesterday we only had 16 patients.

We are thinking to having our work hours changed to Monday -Friday from 9 am -3 pm during this crisis. would this have impact with hourly staff? 

It would be reducing 2 hours per day.

  • A. You can modify the hours worked for hourly staff in any way you see fit and would only pay for actual hours worked.

Q. What impact for the 2 Salary positions. 

  • A. If you are asking whether you can reduce the salary for salaried staff, the answer is yes, but with the following caveats:
  1. You must provide a 7 day lead time when you make a reduction in salary and the new salary offer needs to be in writing with the effective date- no less than 7 days hence
  2. You can not under any circumstances, reduce a salaried person’s weekly salary amount to less than $684 for the week.
  3. If you want to change a salaried person to far less work, one option would be to change them to an hourly wage and pay just hours worked.  To do that, you must make the new wage offer in writing and it could not go into effect for a minimum or 7 days.

AdvanStaff HR will be administering the COVID FMLA so we will be interfacing and following up with each employee that requests such a leave.  COVID sick time will be more challenging because you will be handling that at the time the employee asks for it.  We will be here to help with COVID sick time, but each employer will need to manage the initial requests.

The law itself defines exactly what applies in each case.  More complete information is under the Families First tab on our Manager information page, but I have excerpted an inserted information below for your convenience.

  • Reasons for Emergency Leave – Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is the only qualifying need for Emergency FMLA . This is paid leave.
  • Paid Leave – The first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The new Act now limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee. 

Emergency Paid Sick Leave Act

  • Reasons for Paid Sick Leave – The Act allows an eligible employee to take paid sick leave because the employee is: 
  1. Subject to a federal, state or local quarantine or isolation order related to COVID-19; 
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns; 
  3. experiencing COVID-19 symptoms and seeking medical diagnosis; 
  4. caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; 
  5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 
  6. 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.

Of note, caring for another who is subject to an isolation order or advised to self-quarantine as described above is no longer limited to just family members.   

AdvanStaff will continue to be here to help!

After the governors announcement for NV on Tuesday, I have asked employees to use their PTO for now as we evaluate what to do to minimize the spread of the virus. My plan is to expand our hours/set those who we can to work remotely and create 2 shifts 6 am to noon and noon to 6 pm. 

Q. How does the new relief legislation impact my business – do I need to pay employees for the 10 weeks at the 2 thirds of their pay unless I lay them off?

  • A. If you have an active employee who qualifies for the Emergency FMLA, yes, the company would be responsible to pay 2/3 salary up to the 10 week maximum period.

    If an employee has been laid off the legislation would not apply.

Q. Especially if we get a complete shut down order as per California?

  • A. If you get a complete shut down anywhere, payment of sick or wage under the Emergency FMLA would not apply.

    It is possible, though, that if you had an employee with a qualifying issue who began to benefit prior to the shutdown, that you would need to continue to pay to the limits provided for in the legislation.  That is not a certainty, but is a possibility.  For that reason, timing of your business decisions related to retaining employees could be important.

AdvanStaff will continue to be here to help as you work through these challenges!

Question 1

If we wanted to pay our staff the 2/3 wages of last 6 month average, (and get the tax credit) do we not layoff and do FMLA for them?

The only time you would ever pay an employee 2/3 wages would be if they are:

1) still an active employee AND

2) qualify for “Emergency FMLA Leave”  (We will call it COVID FMLA) and

3) after the first 10 days of absence.

So as you can see, payment of that 2/3 wage will likely be few and far between.

If anyone is laid off prior to the effective date of the law, April 2nd, they would not be active any more and as such, would not be eligible for COVID FMLA or anything else for that matter.

Question 2
Also – does the new bill only cover employees with children for us to get the tax credit?

Again, you would ONLY pay the 2/3 wage after a 10 day wait to active employees who have a qualifying COVID FMLA situation.

  1. That situation applies only to those who need to care for children due to school, daycare, etc. closure.
  2. The employee would request COVID FMLA through AdvanStaff’s FMLA team.
  3. The tax credit ONLY applies when the individual’s circumstances qualify them for COVID FMLA, the employer has paid them for their leave time (from the 11th day up to a maximum of 10 weeks) and for a set maximum amount of wage.

Normally, at the end of the year, with information from our system on who was actually paid under this legislation, apply for a tax credit; But we are learning there may be faster relief through immediate payroll tax credits.

I thought anyone that was sent home due to coronavirus qualified and the employer would get reimbursed?

There is no reimbursement for employers through the legislation that was just passed.   It is conceivable that there are other bills pending in Congress with different incentives for employers to keep employees, but I am not aware of anything such as you mention here.  😊

Information provided on this page is for informational purposes only. All situations are different.
Please consult your legal counsel on how legislation applies to your specific company or situation.