Updated FAQs for Employers: Families First Coronavirus Response Act

The much-anticipated Families First Coronavirus Response Act (FFCRA) was officially signed into law by President Trump on March 18, 2020. Employers with less than 500 employees should be ready to implement emergency paid sick leave and provide for FMLA leave under certain circumstances relating to COVID-19 as early as April 1, 2020.

On March 24, 2020, the United States Department of Labor (DOL) released a series of guidance documents and on April 2, 2020, the DOL issued a new Rule.

Below are our updated FAQs and answers to help employers navigate and understand their obligations under the FFCRA, which include the newest information provided by the DOL. As always, Buchanan Ingersoll & Rooney is available to assist you during this unprecedented and challenging time.

Generally

Q: What is the current status of the Families First Coronavirus Response Act (FFCRA)?

A: President Trump signed into law H.R. 6201, the FFCRA, on March 18, 2020.

Q: Who does the Act cover?

A: 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.

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

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

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

A. 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 at the time that your employee’s leave is to be taken.

Q: We 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?

A: 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 tests.

Q: How does the FFCRA impact my leave policies?

A: 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.

Q: When does the FFCRA apply to private employers?

A: The FFCRA took effect on April 1, 2020 and expired on December 31, 2020. However, under the C.A.A. 2021 (signed into law on December 27, 2020), employers will continue receiving tax credits until March 31, 2021 if they voluntarily choose to allow their employees to use any remaining FFCRA leave from January 1, 2021-March 2021.

Q: Do I have to provide emergency paid sick leave or paid FMLA leave if my employees are not able to work because I have decided to close my business or made a business determination that employees should not be working?

A: If an employer makes a decision to close or cancel work shifts for business reasons (i.e. lack of work), neither emergency paid sick leave nor paid FMLA leave will apply as they are available only to employees who are not working due to specified reasons, not including their employer’s decision to cease or reduce operations.

Q: Will I receive a tax credit for the emergency paid sick leave or paid FMLA and, if so, how do I secure it?

A: Yes. See the separate advisory we issued on this topic.

Q: What information must I collect from an employee to substantiate the employee’s request for sick pay or emergency paid FMLA leave and secure a tax credit?

A: An employee must provide the following information prior to taking paid sick leave or emergency FMLA leave:

1. Employee’s name;
2. Date(s) for which leave is requested
3. Qualifying reason for the leave;¹
4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.
5. The name of the government entity that issued the quarantine or isolation order.
6. The name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.
7. The name of the son or daughter being cared for;
8. The name of the school, place of care, or child care provider that has closed or become unavailable; and
9.  A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or expanded FMLA leave.

Emergency Paid Sick Leave Act

Q: Under the Emergency Paid Sick Leave Act (which is part of the FFCRA) how much paid leave must employers provide?

A: 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 normally works over a two-week period; however, the benefits are capped at certain amounts per employee.

Emergency paid sick leave under this Act shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time for COVID-19 reasons (as outlined in the next question).

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

A: All employees of private employers with less than 500 employees, regardless of how long they’ve been employed, are eligible for emergency paid sick leave. Employees will be eligible if their employer has work for me, but 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 paragraphs (1) or (2).
5. 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 child care 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.

Q: What is teleworking?

A: An employee is able to telework if: (a) his or her employer has work for the employee; (b) the employer permits the employee to work from the employee’s location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.

Q: Who is considered “a son or daughter?

A: A “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. “Son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Q: Are any employers exempt from the Emergency Paid Sick Leave Act?

A: Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act. 

Additionally, employers, including a religious or nonprofit organizations, with fewer than 50 employees (Small Businesses) are exempt from providing sick pay for reason No. 5 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 sick pay for reason No. 5 would result in the Small Business’ 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 sick pay for reason No. 5 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 sick pay, and these labor or services are needed for the Small Business to operate at a minimal capacity.

Q: Can I require employees to use other paid leave before using the federal paid sick leave?

A: No. Emergency paid sick leave under this Act must be available immediately starting as of April 1, 2020.

Q: If I’ve already provided paid sick leave to my employees for reasons identified in the Act prior to April 1, 2020, do I still have to provide two weeks of paid sick leave after April 1, 2020?

A: Yes. The Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

Q: Can I require employees to find a replacement employee to cover their hours if they want to use emergency paid sick leave?

A: No.

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

A: 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 child care 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.

Q: How do I calculate emergency paid sick leave for part-time employees?

A:  If the part-time employee has been employed for at least six months, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the average number of hours that the employee was scheduled to work each calendar day over the six-month period ending on the date on which the employee takes paid sick leave, including any hours for which the employee took leave of any type. 

If the part-time employee has been employed for fewer than six months, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the number of hours the employee and the employer agreed to at the time of hiring that the Employee would work, on average, each calendar day.

If there is no such agreement, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type of leave.

Q: How much notice do my employees have to give me to take emergency paid sick leave?

A: After the first workday (or portion thereof) an employee receives paid sick leave under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick leave.

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

A: 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.

Q: What if I already provide paid sick leave?

A: The Act’s paid leave benefits are in addition to whatever paid sick leave an employer already provides under any state or local law, collective bargaining agreement, or policy.

Q: If the employee’s employment is terminated, do I have to pay them for any unused paid sick leave?

A: No. The Act does not require financial or other reimbursement to an employee upon the employee’s termination, resignation, retirement, or other separation from employment for unused paid sick leave.

Q: Am I required to permit employees to carry over paid sick time if it is not used in 2020?

A: No.

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

A: 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.

Q: How does this Act impact me if I am under a multi-employer bargaining agreement?

A: An employer signatory to a multi-employer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under this Act by making contributions to a multi-employer fund, plan, or program based on the hours of paid sick leave each of its employees is entitled to under the Act while working under the multi-employer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program for their emergency paid sick leave.

Q. Will I receive a tax credit for the paid sick leave I provide?

A. Yes. See the advisory we issued on this topic here.

Emergency Family and Medical Leave Expansion Act

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

A: All employees (full- or part-time) who have been employed for 30 calendar days who have a “qualifying need related to a public health emergency.” The requirement that the employee must be employed for a year and work 1,250 hours in a location where there are 50 or more employees within a 75-mile radius does not apply to this benefit.

The Act defines “qualifying need related to a public health emergency” as “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.” (Hereinafter, COVID-19 Qualifying FMLA Leave.)

Q: Who is considered a "son or daughter"?

A: A “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. “Son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Q: How does the Act define a “public health emergency”?

A: The Act defines a “public health emergency” as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”

Q: How does the Act define a “child care provider”?

A: The Act defines a “child care provider” as: “a provider who receives compensation for providing child care services on a regular basis, including an ‘eligible child care provider’ (as defined in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n)).”

Q: How does the Act define a “school”?

A: The Act defines a “school” as “an ‘elementary school’ or ‘secondary school’ as such terms are defined in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).”

Q: If I employ health care providers or emergency responders, will COVID-19 Qualifying FMLA Leave apply to my business?

A: Employers of health care providers or emergency responders may elect to exclude their employees from this Act. Additionally, the Act gives the Secretary of Labor the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee under the Act.

Q: How many weeks of COVID-19 Qualifying FMLA Leave do I need to provide and does it need to be paid?

A: Employees are eligible for up to a total of 12 weeks of COVID-19 Qualifying FMLA Leave. The first two weeks are unpaid; however, as a practical matter, an employee may use Sick Pay or accrued but unused time off under an employer policy to be paid for the first two weeks.  The remaining 10 weeks of COVID-19 Qualifying FMLA Leave must be paid at 2/3 the employee’s regular rate for the number of hours that the employee would otherwise be normally scheduled to work, with the paid leave capped at $200 per day and $10,000 in the aggregate per employee.

Additionally, if you already provide regular FMLA leave to your workers, then an employee cannot take more than a total of 12 weeks of any FMLA leave (including COVID-19 Qualifying FMLA Leave) during the 12-month period the employer uses for calculating annual FMLA leave entitlements, i.e., an employee’s available COVID-19 Qualifying FMLA Leave will be reduced by other FMLA leave taken during the applicable 12-month period.

Q: If employees are on FMLA leave for non-COVID-19 reasons, do I now have to pay them?

A: No. The 2/3 payment requirement only applies to COVID-19 Qualifying FMLA Leave.

Q: How much notice do my employees have to give me before taking COVID-19 Qualifying FMLA Leave?

A: Where the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.

Q: Do I need to inform employees of their right to take COVID-19 Qualifying FMLA Leave

A: 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.

Q: Are any employers exempt from providing COVID-19 Qualifying FMLA Leave?

A: Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act. 

Additionally, employers, including a religious or nonprofit organization, with fewer than 50 employees (Small Business) is exempt from providing COVID-19 Qualifying FMLA Leave 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 COVID-19 Qualifying FMLA Leave would result in the Small Business’ 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 COVID-19 Qualifying FMLA 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 COVID-19 Qualifying FMLA Leave, and these labor or services are needed for the Small Business to operate at a minimal capacity.

Q: Is the COVID-19 Qualifying FMLA Leave job protected?

A: 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.

Q: How does this Act impact me if I am under a multi-employer bargaining agreement?

A: An employer signatory to a multi-employer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under these amendments by making contributions to a multi-employer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multi-employer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multi-employer collective bargaining agreement for COVID-19 Qualifying FMLA Leave.

Impact on Unemployment: Emergency Unemployment Insurance Stabilization and Access Act of 2020

Q: What impact does the FFCRA have on unemployment insurance?

A: The FFCRA provides $1 billion in emergency unemployment insurance relief to the states, allocating half for costs associated with increased administration of each state’s unemployment insurance program and the other half to be held in reserve to assist states with a 10 percent increase in unemployment. To receive a portion of this grant money, states must temporarily relax certain unemployment insurance eligibility requirements, such as waiting periods and work search requirements.

Q: Do I have any new unemployment-related obligations under the Act?

A: No. But, for states to get funding, they must take the following steps, so employers should watch for state-mandates on the following:

1. Requirement for employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment. Such notification may be based on model notification language issued by the Secretary of Labor.
2. State must ensure that applications for unemployment compensation, and assistance with the application process, are accessible in at least two of the following: in-person, by phone, or online.
3. State must notify applicants when an application is received and is being processed, and in any case in which an application is unable to be processed, provides information about steps the applicant can take to ensure the successful processing of the application.

Again, the FFCRA does not impose new unemployment compensation requirements on employers, but states may require employers to take steps so that they can meet the above goals. Additionally, the FFCRA provides that the Secretary of Labor may prescribe regulations, operating instructions, or other guidance necessary to carry this out, so employers should be on the lookout for that as well.