The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, and amended Title I of the Family Medical Leave Act of 1993 to assist workers through the COVID-19 crisis. The FFCRA established both the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family & Medical Leave Expansion Act (EFMLEA).
Since it was signed into law, the FFCRA legislation has continued to evolve to meet the changing needs of employers and employees across the nation. In this article, we are going to take a look at the EPSLA and the EFMLEA, recent regulatory updates, and what all this means for you as an employer.
Emergency Paid Sick Leave Act
Let’s take a look at the nitty-gritty details first. The EPSLA requires employers with fewer than 500 employees to cover 80 hours of paid sick leave for eligible full-time employees, and sick leave hours equal to the number of hours worked on average over a typical two-week period for eligible part-time employees. An eligible employee is to receive sick leave at his/her regular rate of pay, capped at $511/day and $5,110 total, if he/she:
- Is quarantined or isolated subject to federal, state, or local quarantine/isolation order;
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
An eligible employee is to receive sick leave at the ⅔ of his/her regular rate of pay, capped at $200/day and $2,000 total, if he/she:
- Is caring for an individual who is quarantined or isolated subject to federal, state, or local quarantine/isolation order, or someone who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Is caring for a child whose school or place of care is closed due to COVID-19; or
- Is experiencing any other substantially similar condition, as specified by the Secretary of Health and Human Services.
The EPSLA does not preempt existing state and local paid sick leave requirements and restricts employers from requiring employees to use other forms of leave first.
Expanded Family and Medical Leave Act
OK, one nitty-gritty detail down. One to go. The EFMLEA requires employers with fewer than 500 employees to grant eligible employees up to 12 weeks of job-protected leave, 10 of which are paid by the employer at 2/3 of the employee’s regular rate of pay, capped at $200 per day and $10,000 total per employee. The employee may utilize other paid time off and sick leave under the EPSLA during the first two unpaid weeks of leave.
An eligible employee must have been employed for at least 30 days and be unable to work or telework because, due to a COVID-19-related school or childcare facility closure, the employee is caring for a child under the age of 18.
Latest DOL Updates to the FFCRA Legislation
Now, lets focus on some of the recent regulatory updates affecting employers. The US Department of Labor (DOL) published a temporary rule, which became effective on September 16, 2020. The rule was issued in order to reaffirm, revise, and clarify certain matters in the prior temporary rule put in place in April. This rule will also remain in effect until December 31, 2020.
Work-Availability Requirement – The original rule explained, even if an employee met any of the eligibility requirements listed among reasons 1-3 (see EPSLA section above), the employee is not able to take FFCRA paid leave during a period in which the employer has no work or telework available for the employee to perform. So, if you temporarily or permanently closed your office, for example, your employees are not eligible for FFCRA paid leave during that time. Pretty straight-forward – with the office closed, there isn’t work available.
The latest guidance clarifies that, while not explicitly expressed in the original guidance, this is also true for employees meeting any of the eligibility requirements listed among reasons 4-5 (see EPSLA section above).
Employer-Approval Requirement for Intermittent Leave – The DOL’s revision also reaffirms that an employee must obtain employer approval to take leave intermittently under the EPSLA or EFMLEA. The DOL explains that intermittent leave is only allowed for COVID-19-related child care issues relating to the EFMLEA and to EPSLA eligibility reason #5. Because all other EPSLA eligibility reasons could increase the spread of the virus if intermittent leave is taken, the DOL is holding firm to this ruling, as well as the employee’s need to seek prior approval for intermittent work and telework arrangements.
Revisions to Definition of ‘‘Health Care Provider’’ – The original rule allowed for employers to exclude certain health care providers; however, the use of the term “health care providers” caused a great deal of confusion. The new rule clarifies a few things about said use, in terms of the FFCRA. First, the listing of health care facility types provided is only to be used as a non-exhaustive guideline, so it doesn’t necessarily exclude employees of other facility types. Second, not everyone working for these types of facilities qualifies for exemption.
The new rule also provides a non-exhaustive list of examples of diagnostic, preventative, treatment, and integrated services that qualify, as patient care would be adversely affected in their absence. Additionally, it confirms the FFCRA definition of “health care provider” in no way changes the definition in terms of the FMLA.
Notice and Documentation Requirements – The DOL’s new rule recognized an inconsistency in the EFMLEA’s paid leave recipients’ requirements for notice and documentation for their employer. The FFCRA required notice must be given to an employer “as practicable, when the necessity for such leave is foreseeable,” but it also required documentation for leave to be submitted prior to leave approval. The timing there obviously doesn’t jive. To rectify the issue, the DOL changed the language to agree with the “as practicable” timing of notice.
Latest IRS Updates on Associated Employer Tax Credits
Employers are eligible to receive tax credits to offset qualified wages and health insurance costs paid, dollar-for-dollar. It’s important for employers to understand the reporting requirements in order to receive the full credit amount.
The IRS issued Notice 2020-54 in July, which contained leave qualifications and reporting compliance guidelines for receiving employer tax credits. Employers must report qualified leave amounts on Form W-2, Boxes 1 and 3, up to the social security wage base; Box 5; and Box 14. A separate disclosure statement may be used in lieu of Box 14, provided it is delivered via the same method and at the same time as the employee’s W-2.
Employers should use the Notice’s suggested language, or language similar thereto. And disclosures should be separated into totals for EFMLEA leave paid, EPSLA leave paid for reasons 1-3, and EPSLA leave paid reasons 4-6 (see EPSLA paragraph above).
Additional Resources
Information of interest to employers may also be found on the FFCRA FAQ web pages for the DOL and IRS, as well as on the DOL web pages detailing Employee Paid Leave Rights and Employer Paid Leave Requirements.
Join us! Commonwealth and our HR content partner, Mammoth HR, are offering a live webinar on Tuesday, October 20, 2020, from 1:00 to 2:00 PM, EST. Kara Govro, Attorney and HR Expert, will cover the FFCRA and will delve further into the legislative changes outlined above.
SIGN UP! The FFCRA – Emergency Paid Sick Leave and Expanded FMLA
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