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Families First Coronavirus Response Act Guidance and FAQ

Update: March 19, 2021

The new stimulus package, signed by President Biden on March 11, 2021, includes new changes to the COVID paid leave benefits under the FFCRA.

Here are the key points you need to know:

Providing FFCRA paid leave continues to be voluntary

FFCRA tax credits have been extended and are available through September

Starting April 1st, employees can now use FFCRA for vaccine-related absences

It’s all or nothing — don’t pick and choose which employees can use paid leave

Banks of FFCRA sick and family leave time are reloaded on April 1st

We have details on each of these points on a new blog post here.

Update: December 29, 2020

Paid leave under FFCRA was originally scheduled to expire December 31, 2020. As part of the end of year stimulus package, the federal government extended the FFCRA tax credit.

Therefore, effective January 1, 2021, employers are no longer required to provide FFCRA. However, if employers choose to provide FFCRA paid leave benefits to their employees voluntarily, they can still receive the dollar-for-dollar tax credits available under the law through March 31, 2021.

Employees’ banks of FFCRA time will not be renewed, so only employees who have not already used up all of their FFCRA leave will be eligible in 2021. As a reminder, employees who meet FFCRA eligibility requirements can take a total of 2 work weeks of paid emergency sick leave, and an additional 10 work weeks for child-care-related needs.

Because these tax credits will still be available, we are recommending that employers continue to provide FFCRA benefits. Also, please note that many cities and states have passed their own emergency paid leave laws that may extend into next year. As a result, you should continue to reach out to CEDR before you deny an employee’s paid leave request.

If you have questions about this update or administering FFCRA benefits for your team, use the links below to get in touch with CEDR’s HR Experts and/or crowd-source answers to your questions from other business owners and managers in the dental, healthcare, and wellness industries.

CEDR Members: Submit an HR Support Request to the Solution Center.

Non-Members: Join the discussion in HR Base Camp.

Update: August 3, 2020

A federal judge has called multiple provisions of the FFCRA into question, including the DOL’s language concerning healthcare exemptions, intermittent leave, FFCRA pay when a business is closed or there is no work available, and leave documentation.

Read a summary of the ruling on our blog.
The Families First Coronavirus Response Act (FFCRA) was the first piece of emergency legislation passed by the federal government in response to the present outbreak of coronavirus/COVID-19.

The FFCRA requires employers to provide eligible employees with up to two weeks of paid sick leave and up to ten weeks of paid family leave under certain specific circumstances related directly to the impact of the coronavirus.

There is a lot of confusion out there about when you need to provide this paid time off to employees who are not working. These benefits ONLY apply if the employee’s situation falls into one of the following criteria:

1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  - This includes a state’s mandatory post-travel quarantine.
2. Advised by a healthcare provider to self-quarantine due to COVID-19 concerns;
  - Note they need to have been told by their doctor to quarantine; you sending the employee home or the employee choosing to self-quarantine doesn’t require pay.
3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  - They need to be symptomatic and seeking medical attention; staying home from work as a precautionary measure is not enough to qualify for pay.
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;
  - Again, there needs to be an actual order to quarantine — it can’t just be choosing to stay home out of an abundance of caution.
5. They must care for their 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;
  - This is the only scenario when the additional ten weeks of family leave applies.
6. They experience 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.
  - Basically a big catch-all allowing them to add more criteria later – don’t worry about it.

For more step-by-step guidance, the DOL has an interactive tool that walks you through whether someone is eligible for pay.

You can read the law in its entirety here, but we’ll provide a brief summary and answer some of the most common questions the CEDR Solution Center is receiving about this law below.

Here’s a rundown:

The law only applies to certain coronavirus related absences; not lack of work due to a business closure.

Only specific employees who are sick/quarantined, caring for a sick/quarantined family member or a child whose school is closed are eligible for paid time off under the law. All other employees who experience lack of work due to the virus are eligible for unemployment, but not employer sponsored paid time off under this law.

Tax Credits

100% Tax credits are available for employers who pay employees emergency Paid Sick leave and who pay employees emergency Paid Family And Medical Leave. The tax credits cover payments made to employees who qualify for leave under the law (up to the maximum daily/aggregate amounts) as well as payments made to maintain the employee’s health insurance coverage during the leave.

In order for businesses to be able to afford these payments during these difficult times, the IRS has implemented a system for prompt payment of tax credits.

Tax credit is only given for payments made as required under this law. So, if an employer chooses to pay an amount that goes above and beyond the cap provided by law, there’s no tax credit for that extra amount. If an employer is not subject to this law but chooses to offer pay, there is no available tax credit.

Paid Time Off Benefits Provided by the Families First Coronavirus Response Act:

Emergency Paid Sick Leave

All employers with fewer than 500 employees are required to offer two weeks (or the hourly equivalent of an employee’s usual workload over the course of two weeks) of paid sick leave to all employees under certain circumstances in addition to any Paid Sick Leave they offered before the law was enacted. The requirement to provide federally mandated sick leave expires on December 31, 2020.

When does this benefit apply?

Employees are entitled to emergency paid sick leave if (and only if) they are:

1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. Advised by a healthcare 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. They must care for their 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;
6. They experience 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.

Which employees qualify for this benefit?

All employees. There is no length of service requirement. However, an important change to this section provides an exception for employees who are health care providers or emergency responders.

How many hours of sick time are available?

Employees are able to use paid sick leave for the number of hours they work, on average, over a two-week period, with a maximum of 80 hours.

Once they use up the two weeks of time, they do not have any additional emergency sick leave to use. Meaning, this is not a requirement to pay for two weeks each time the employee needs to be out for a covered reason.

This benefit is only mandated through the end of 2020. Unused amounts will NOT carry over to the following year.

What is the sick leave rate of pay?

If the employee is using sick leave because they are…

Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
Advised by a health care provider to self-quarantine due to COVID-19 concerns;
Experiencing COVID-19 symptoms and seeking medical diagnosis;

…then you must pay sick time hours at the employee’s regular rate. The amount of pay is capped at $511 per day up to $5,110 total per employee.

If the employee is using sick leave because they are…

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 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
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.

…then you must pay sick time hours at ⅔ of the employee’s regular rate. The amount of pay is capped at $200 per day up to $2,000 total per employee.

What if I already provide paid sick leave?

An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the emergency paid sick time available under this law.

An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section. In other words, employees who are only receiving ⅔ of their normal pay under the law may elect to use their accrued paid time off during the first two weeks of leave.

Are there protections for employees who request to use paid sick leave under this law?

Yes. It is unlawful for an employer to take any adverse action (e.g. discharge, discipline, discriminate) against any employee who takes paid sick leave or who is involved in a complaint related to this law.

Am I required to provide notice to my employees?

Yes. Employers must post notice of this paid sick leave law in a conspicuous place in the office where notices to employees are customarily posted. The Department of Labor has also released this FAQ on the notice.

Emergency Family and Medical Leave

When does this benefit apply?

An employee is entitled to emergency FMLA if:

The employee needs to care for their minor child because:
- The child’s school or place of care is closed, or
- The childcare provider is unavailable due to public health emergency
And the employee is unable to work or telework.

Having reasons for leave that fall under other FMLA criteria, or the Emergency Paid Sick Leave Act, do NOT qualify the employee for pay under emergency FMLA.

What about length of employment requirements for employees?

Employees are eligible for the ten-week paid family leave benefit if they have worked for the employer for at least 30 calendar days. Note there’s no length of employment requirement for the two weeks of paid sick leave.

Employees who were laid off after 3/1/20 and then rehired are eligible for paid family leave under the law, as long as they worked for the employer not less than 30 of the last 60 calendar days prior to being laid off.

What benefits can an eligible employee receive?

Employees can take a total of ten weeks of leave in addition to the two weeks of emergency sick leave.

The employer must pay employees at ⅔ the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. There is a maximum payment cap of $200 per day and $10,000 in aggregate per employee.

To determine the number of hours of Emergency FMLA pay for an employee who does not have a regular schedule:

- - Pay an amount equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
  - If the employee worked for less than 6 months, pay based on the employee’s reasonable expectation of hours at the time they were hired

Does the employee have a right to their job at the end of their leave?

Employers with 25 or more employees are required to return the employee to the same or equivalent position upon their return to work.

Employers with fewer than 25 employees are required to return the employee to the same or equivalent position upon the return to work, UNLESS:

The employee’s position no longer exists due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA.

AND

The employer has made reasonable attempts to return the employee to an equivalent position. The employer must make efforts to return the employee to work for up to a year following the employee’s leave.

How Should I Document an Employee FFCRA Leave Request?

Employees are required to provide a specific set of information to the employer when they request paid leave under FFCRA. All employees requesting leave must provide:

Their name;
The date(s) for which leave is requested;
The reason for leave; and
A statement that s/he is unable to work because of the reason.

Employees who request paid sick leave because they or someone they are caring for are in quarantine or isolation because of a government order or the advice of a healthcare provider must provide:

The name of the government entity that issued the quarantine or isolation order OR
The name of the healthcare provider who gave the advice AND
If the person in quarantine or isolation is not the employee, that person’s name and relation to the employee.

Employees who request leave to care for a child whose school or daycare is unavailable must provide:

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 that no other suitable person is available to care for the child.

IMPORTANT: All requests for FFCRA, whether submitted orally or in writing, must be documented by the employer even if the requests are denied. This documentation must be kept for 4 years.

We know this sounds complicated, but it is actually pretty simple if you have the right documents. CEDR members have access to two customizable CEDR documents that will make this process a breeze:

An FFCRA Leave Request Form
An FFCRA Leave Approval/Denial Letter

CEDR Members: To download those forms and get help customizing them, distributing them to your team, and having your employees sign them digitally, contact the HR Solution Center.

Keep in mind that the IRS requires employers to maintain additional documentation to claim tax credits. Read more on this IRS FAQ Page (Question #45).

Exemptions from the Law

This applies to all employers with fewer than 500 employees. However, there are some exemption options if you do not have the cash flow to support providing the pay upfront and then getting it back through a tax reimbursement.

Employers with less than 50 employees may be exempted.

Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:

The provision of paid sick leave or expanded family and medical leave would result in the small 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 small 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.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave. You should document why your business meets one of the three criteria listed above.

Healthcare provider employees may be exempted.

Employers may choose to exempt their healthcare provider and emergency response employees from the paid leave requirements under the law.

The definition of a “health care provider employee” is being broadly defined by the DOL to include “anyone employed at any doctor’s office, hospital, health care center, clinic…” (Please read the full definition here [FAQ #56])

So, for those of you who are owners of dental or medical practices, this means you can potentially exclude all of your employees from paid leave benefits. However, we really do encourage you to consider paying the FFCRA benefits as it will often actually work better in your favor.

Keep in mind, any health care provider employees who are excluded from paid leave benefits under the Families First Act, would be eligible for unemployment benefits under the CARES Act.