Families First Coronavirus Response Act, Employer Details

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On Wednesday, March 18, 2020, Congress passed, and President Trump signed, the Families First Coronavirus Response Act (“FFCRA”). The Act took effect April 1, 2020, and it sunsets on December 31, 2020. These FAQs are intended to answer many of the questions you might have as you try to comply with this complicated emergency legislation and to provide sick or leave pay to your affected employees.


Q: What is the Act all about?

A: The Families First Coronavirus Response Act is really a set of acts designed, as the name implies, to address several facets of the ongoing coronavirus COVID-19 pandemic. Two of these acts directly affect employers’ obligations to provide a measure of leave pay under certain circumstances related to the pandemic.

Unfortunately, neither of these statutes has a convenient short name.  The first, the Emergency Family and Medical Leave Act (EFMLA, but remember the “FML” part) amends the Family and Medical Leave Act to provide up to 12 weeks of leave, 10 of which are paid at 2/3 pay. The DOL refers to this as “expanded Family and Medical Leave.”

The second, the Emergency Paid Sick Leave Act (EPSLA, remember “SL” for sick leave for ease of reference), provides up to 2 weeks/80 hours of sick pay for employees who miss work for designated reasons related to the coronavirus. The DOL refers to this as “paid sick leave.”


Emergency Family and Medical Leave Expansion Act

This Act makes amendments to the Family and Medical Leave Act (FMLA) specific to COVID-19.

Q:  Which employers must comply?
A:  All private employers—with less than 500 employees. There is a small business exemption allowed for EFMLA.  To elect this exemption, the employer must document that the paid EFMLA would create financial stress and hardship to the organization.   The employer does not (and should not) provide this documentation to the DOL but should keep the records in its files. Importantly, small businesses that fall under this exemption are still subject to the EPSLA sick leave provisions and must still post notice of the act’s requirements.

Q:  Which employees are eligible? 
A:  An employee who has been employed for at least 30 days and is unable to work (or telework) due to a need to care for children under 18 years of age, if the school or place of care has been closed, or if the child care provider of such children is unavailable, due to a public health emergency.

    • First ten days unpaid: The first ten days of leave may consist of unpaid leave. The employee can elect to substitute accrued vacation, personal leave, or medical sick leave for unpaid leave
    • Paid leave for subsequent days: Employer shall provide paid leave thereafter. The paid leave shall be for two-thirds of the employee’s regular rate of pay. Paid leave shall not exceed $200 a day or $12,000 in aggregate.
    • Employers of health care providers and emergency responders: An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees from the application of these provisions.

Emergency Paid Sick Leave

The Emergency Paid Sick Leave Act is specific to COVID-19.

Q:  Which employers must comply? 
A:  For employers less than 500 employees. (Excluded employers:  An employer of a health care provider or an emergency responder may elect to exclude such employees for application of these provisions.)

Q:  Which employees are eligible? 
A: Any employee working for an employer with fewer than 500 employees. There are no accrual or length of employment requirements.

    • Reasons for sick leave: An employer shall provide each employee with paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
      1. The employee is subject to a federal, state, or local quarantine or isolation order due 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 as provided in (1) or has been advised as per (2).
      5. The employee is caring for a son or daughter if the school or place of care for the child has been closed, or the child care provider 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 Treasury and the Secretary of Labor.
    • Duration of paid sick leave:
      • Full-time employees: up to 80 hours to be used this year.
      • Part-time employees: number of hours equal to the number of hours the employee works, on average, over a two-week period, which must be used before the end of the year.
    • Sequencing of leave: The employer cannot require the employee to use other paid leave first.
    • Carryover from year to year: This paid sick time does not carryover from one year to the next nor it is paid out upon the employee’s separation of his/her employment.

Q: How do we afford this?
A: Subject to certain caps and restrictions, covered employers are eligible to receive refundable tax credits for paid sick and protected leave based on the type of leave and whether the leave is for the employee or the employee’s family member. Although the DOL notes that it does not administer this portion of the act, it has described it as “dollar for dollar” reimbursement for covered employers through tax credits. The IRS guidance on how the credits will work can be found hereIRS FAQs.


Accordingly, to qualify for such credits, employers must maintain the following records for four years:

Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to eligible employees, including records of work, Telework and Paid Sick Leave and Expanded Family and Medical Leave; Documentation to show how the employer determined the amount of qualified health plan expenses allocated to wages;

  • Copies of any completed IRS Forms 7200 submitted to the IRS;
  • Copies of the completed IRS Forms 941 submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
  • Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

To take advantage of available tax credits, employers should comply with both sets of directives from the DOL and IRS.


This is hard and there are many caveats to these two new acts.  Please consult the frequently asked questions put out by the DOL; DOLs Pandemic FAQs or if you have particularly complicated questions specific to your business please feel free to reach out to HR On-Call at 515-401-2233 for clarification or answers.

Stay safe and we will all get through this together!    

 


Susan Arnold
HR On-Call, LLC
p. 515.401.2233
e . Susan@HROn-Call.com

A little more about us: Susan Arnold, owner and lead HR Consultant at HR On-Call, LLC. Susan has 20+ years of HR experience and provides a HR presence to business organizations without the overhead expense of a full-time employee. Susan helps business owners improve employer/employee relationships and allows them to focus on their business while resting assured that they are in full compliance with state and federal law. Areas of expertise:

  • Reduce Employer Risk and Liability
  • Customized Employee Handbooks
  • Performance Reviews
  • Improve Employee/Employer Relationships
  • Background Checks
  • Personality Assessments
  • Guaranteed EEO Compliance
  • Employee Retention
  • Recruitment / Hiring
  • Employee Discipline/Discharge

Susan is passionate about her customers and listens to their needs. If you are interested in any of the details above or would like more information about her services, please contact Susan! If you have questions on how your specific policy should read or need help navigating a certain instance, contact HR On-Call, LLC

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