After weeks of rolling updates in the form of Posters, FAQ’s and a Webinar to clarify the uncertainty and ambiguity created by the Families First Coronavirus Response Act (FFCRA), the US Department Of Labor has issued what appears to be final and definitive regulatory guidance on its website.
Following is an overview of the most important provisions and key takeaways for employer compliance with the FFCRA.
What is the FFCRA?
Effective April 1, 2020 through Dec. 31, 2020, the Families First Coronavirus Response Act (FFCRA) provides small and midsize employers refundable tax credits that reimburse them, dollar-for-dollar, for the cost of providing up to two weeks of paid sick and up to 12 weeks of expanded family and medical leave wages to their employees for leave related to COVID-19.
Key takeaway: The purpose of the act was to protect employees that have to take leave for COVID-19 related reasons only. These include taking time to recover from COVID-19, take care of a recovering family member or care for a child whose school or place of care is closed. An employee may not take paid sick leave under the FFCRA if she becomes ill with an illness not related to COVID-19.
What employers have to comply?
Generally, if you employ fewer than 500 employees you must provide paid sick leave and expanded family and medical leave. This includes full-time, part-time, employees on leave, temporary employees who are jointly employed by you and another employer and day laborers supplied by a temporary agency. Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than are not considered employees for purposes of the 500 employee threshold.
Key takeaway: Because employer size is recalculated each time leave is requested by an employee, employers should ensure that they maintain an accurate headcount of employees.
What happens if an employer doesn’t comply?
If the employer violates the Act willfully, fails to provide a written commitment to future compliance with the Act, or fails to remedy a violation upon notification by the Department, the Department reserves its right to fully enforce violations of the Act, as appropriate and consistent with the law.
Key takeaway: It’s still a little unclear how severe the violations associated to non-compliance might be, but the DOL has set up a toll-free hotline to the Wage and Hour Division (WHD) to field incoming calls to report violations. In some cases, an employee could file a lawsuit against a non-compliant employer directly without contacting WHD. More information will come in future updates.
Can an employer be exempt?
Yes. Certain employers with fewer than 50 employees may be exempt if providing an employee such leave would jeopardize the viability of the business. This means a small business is exempt only if:
- Employer employs fewer than 50 employees;
- Complying would result in business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- 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 business because of their specialized skills, knowledge of the business, or responsibilities; or
- 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.
Additionally, if you employ a health care provider or an emergency responder you are not required to pay such employee paid sick leave or expanded family and medical leave on a case-by-case basis.
Key takeaway: If you employee fewer than 50 employees and complying would effect your ability to stay in businesses, you’re generally exempt. However, you’ll have to document why your business with fewer than 50 employees meets the criteria set forth by the Department. How and where to submit your documentation will be addressed in more detail in forthcoming regulations.
What is an employee entitled to under the FFCRA?
Paid Sick Leave (PSL)
Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at:
- 100% for employees under local quarantine or isolation order related to COVID-19, experiencing symptoms and are seeking medical diagnosis or have been advised by a health care provider to self-quarantine due to concerns related to COVID-19. These employees are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.
- 2/3 for employees caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. These employees are entitled to a maximum of $200 per day, or $2,000 over the entire two week period.
Expanded Family and Medical Leave
Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for employees caring for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. These employees are entitled to a maximum of $200 daily and $12,000 total.
Key takeaway: Employees affected by COVID-19 qualifying circumstances, including circumstances that may overlap with expanded family and medical leave, will need to be provided with PSL under FFCRA.
What records are employers required to keep?
Regardless of whether an employer grants or denies a request for paid sick leave or expanded family and medical leave under FFCRA, the employer must document the following:
- The name of the employee requesting leave;
- The date(s) for which leave is requested;
- The reason for leave; and
- A statement from the employee that he or she is unable to work because of the reason.
- If employee is subject to quarantine or isolation order, the name of the government entity.
- If employee is subject to self-quarantine based on the advice of a health care provider, the name of the health care provider.
If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you must also document:
- The name of the child being cared for;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A statement from the employee that no other suitable person is available to care for the child.
Key takeaway: Employers are required to retain all documentation provided by employees seeking PSL or expanded family and medical leave, regardless of whether leave was granted or denied.
More information on the details of the FFCRA can be found on the DOL’s COVID-19 and The American Workplace website.
Ulises I. Orozco is co-founder of PTO Genius, a Miami-based startup, helping businesses reimagine paid time off (PTO) as an asset that employees can instantly convert into cash and use to pay down student loans, fund retirement, invest in college savings or use for emergency expenses.