Updated FFCRA Guidance for Employers

General Questions About FFCRA

• Who is a covered employer under the FFCRA?

  Private employers with less than 500 employees and some public employers are covered well.

• When are FFCRA benefits in effect?

  April 1, 2020 through December 31, 2020.

• How do I know if I have over 500 employees?

  The Department of Labor (DOL) states that employers should count all full-time and part-time employees working within any state of the United States, the District of Columbia, or any Territory or possession of the United States. Employees on leave, temporary employees and day laborers supplied by a temporary agency must also be considered.  Independent contractors are not to be included.

  According the DOL’s Frequently Asked Questions (FAQs) regarding the FFCRA, a corporation (including its separate establishments and divisions) will typically be considered a single employer and its employees must each be counted. If one corporation has an ownership interest in another corporation, the two entities are separate employers unless they are considered joint employers under the Fair Labor Standards Act (FLSA). If the FLSA joint employment test is satisfied, the two corporations must aggregate their employees for purposes of determining whether they must provide EPSL or EFMLA benefits.

  Additionally, the DOL has adopted the “integrated employer” test under the Family and Medical Leave Act (FMLA) regulations for determining whether two entities are separate employers. Factors to be considered in determining if separate entities are an integrated employer include: 1) common management; 2) interrelation between operations; 3) centralized control of labor relations; and 4) degree of common ownership or financial control. According to the FAQs, “integrated employers” are required to aggregate their employees for determining whether they must provide EPSL and EFMLA benefits.

• Do I have to provide FFCRA benefits to employees who are laid off or furloughed?

  No. Employees on furlough or discharged due to lack of work or business closure are not entitled to paid leave benefits under the FFCRA.  This is true even if an employee is furloughed or discharged as a result of a government-imposed closure of the business due to COVID-19.

• Are there exemptions for healthcare providers?

  Yes, healthcare providers may be exempted from EPSL and EFMLA benefits by their employers. A “healthcare provider” includes:

  1. Anyone who is defined as a “health care provider” under the FMLA (i.e., physicians, nurse practitioners, dentists, psychologists, physician assistants, chiropractors, etc.).
  2. Any other employee capable of providing healthcare services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (i.e., nurses, nurse assistants, medical technicians, laboratory technicians, etc.).

   

  The regulations explicitly exclude from the “health care provider” definition, any employee who does not provide healthcare services, such as food service workers, building maintenance staff, IT professionals, HR personnel, etc., even if the services of such employees could have an impact on the provision of healthcare services.

  The DOL encourages employers to be judicious in applying the healthcare provider exemption. For instance, an employer may decide that its employees are exempted from EPSL or EFMLA leave for caring for a family member, but choose to provide EPSL in the case of an employee’s own COVID-19 illness.

• Are there exemptions for emergency responders?

  Yes, emergency responders may be exempted from EPSL and EFMLA benefits by their employers. An emergency responder is an employee who is necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19.  This definition includes, but is not limited to the following:

  1. Military or national guard.
  2. Law enforcement officers.
  3. Correctional institution personnel.
  4. Firefighters.
  5. Emergency medical services personnel.
  6. Physicians, nurses and public health personnel.
  7. Emergency medical technicians.
  8. Paramedics.
  9. Emergency management personnel.
  10. 911 operators.
  11. Child welfare workers and service providers.
  12. Public works personnel.
  13. Persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.
  14. Any individual determined to be an emergency responder necessary for a state’s or territory’s response to COVID-19, as determined by the highest official of each such state or territory (including the District of Columbia).

  Again, the DOL encourages employers to be judicious in applying the emergency responder exemption. For instance, an employer may decide that its employees are exempted from EPSL or EFMLA leave for caring for a family member, but choose to provide EPSL in the case of an employee’s own COVID-19 illness.

• How do I calculate regular rate of pay under the FFCRA?

  Average the regular rate over a period of up to six months prior to the date employee is requesting leave. If the employee has worked less than six months, then average the regular rate for each week worked for the employer. If an employee is paid via tips, commissions, etc., these are factored in to the above in the same way they are included in regular rate under the FLSA.

• Are there notice requirements under the FFCRA?

  Yes, covered employers must post the notice available on the DOL website beginning April 1, 2020.  This notice must be posted at every location where an employer has offices, but the notice does not have to be provided to employees who are laid off. If employees are teleworking, the employer should send the notice electronically and post on any website or intranet where internal policies and procedures are kept.

• Is intermittent leave permitted under the FFCRA?

  EFMLA: An employer may choose to allow employees to take EFMLA leave on an intermittent basis, but is not required to do so. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the DOL is supportive of such voluntary arrangements that combine telework and intermittent leave.

  EPSL: If an employee is teleworking, the employer may choose to allow employees to take EPSL on an intermittent basis, but is not required to do so. Intermittent leave may be taken in any increment agreed upon by the employer and employee.

  If an employee is working at a worksite, as opposed to teleworking, EPSL cannot be taken intermittently if the leave is being taken for any of the following reasons:

  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 healthcare 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 either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of HHS.

  On the other hand, EPSL may be taken intermittently if agreed upon by the employer and employee when taken due to the employee’s need to care for his/her child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19-related reasons.

• Are small businesses with less than 50 employees exempt from the FFCRA’s requirements?

  An employer with under 50 employees may be exempt from providing certain paid leave benefits under the FFCRA only if an authorized officer of the business has determined that at least one of the three conditions below is satisfied:

  1. The provision of FFCRA paid leave benefits 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.
  2. The absence of employee(s) requesting leave under the FFCRA would create a substantial risk to the financial health or operational capabilities of the small business because of the employee(s)’ specialized skills, knowledge of the business or responsibilities
  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 leave under the FFCRA, and these labor or services are needed for the small business to operate at a minimal capacity.

  Note, however, that the small business exemption only excludes a small business from providing:

  1. EPSL due to school or place of care closures or child care provider unavailability for COVID-19-related reasons.
  2. EFMLA leave.

  Small businesses are not exempt from providing EPSL benefits related to the remaining qualifying reasons for which EPSL may be taken, such as seeking a diagnosis of COVID-19, abiding by a quarantine or isolation order, caring for an individual with COVID-19, or experiencing any other substantially similar condition specified by the Secretary of HHS.

  Employers should not send any materials to the DOL when seeking a small business exemption for EPSL and EFMLA, but should internally document if, and when, an employer’s business meets the above criteria.

• If an employer is part of a multi-employer collective bargaining agreement, may the employer satisfy its obligations under the FFCRA through a contribution to a multiemployer fund, plan, or program?

  Yes, an employer may satisfy its obligations under the FFCRA through making contributions to a multiemployer fund, plan, or other program in accordance with existing collective bargaining obligations based on the amount of EPSL and EFMLA leave to which each employee is entitled under the FFCRA. The fund, plan, or program must allow employees to secure or obtain the pay for leave taken under the FFCRA. Alternatively, the employer may satisfy its obligations under the FFCRA through any other method that is consistent with its bargaining obligations and collective bargaining agreement.

• What documentation must an employer maintain when an employee takes leave under the FFCRA?
  • Name of employee requesting leave.
  • Date(s) for which leave is requested.
  • Reason for leave.
  • Employee statement that he/she is unable to work due to a qualifying reason.
  • Government entity issuing quarantine order (if applicable).
  • Name of healthcare provider advising self-quarantine (if applicable).
  • If the leave is to care for an employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable:
    • Name of child being cared for.
    • Name of the school, place of care, or child care provider that has closed or become unavailable.
    • Employee statement that no other suitable person is available to care for the child.

  All of these records should be maintained for four years. In order to claim a tax credit, the IRS advises that employers must retain all records and documentation related to and supporting each employee’s leave to substantiate the claim for the credits and retain Forms 941, Employer’s Quarterly Federal Tax Return, and 7200, Advance of Employer Credits Due to COVID-19, and any other applicable filings made to the IRS requesting the credit.

• How does the employer tax credit work for FFCRA benefits?

  Employers can retain an amount of payroll taxes equal to the amount of EPSL and EFMLA leave that the employer paid rather than depositing this money with the IRS. This includes federal income tax, and employee and employer shares of Social Security and Medicare taxes. If there is insufficient payroll to cover these costs, employers can file a request for accelerated payment from the IRS.

  Examples from the IRS:

  • If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes (whether income or payroll) withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
  • If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

  Additional information on the FFCRA tax credit can be found here.