Updated April 8, 2020
Beginning April 1, 2020, covered employers must provide paid leave during certain absences relating to COVID-19 under the Families First Coronavirus Response Act (FFCRA). We’ve answered the following employer frequently asked questions:
Which employers are covered?
The FFCRA applies to (1) certain public employers and (2) all private employers with fewer than 500 employees. See Department of Labor (“DOL”) FAQ #2 for details on whether a business has 500 employees.
Employers of health care providers and emergency responders may choose to not to offer leave to their employees. See DOL FAQ #58-59 for details on healthcare providers and emergency responders. Also, small businesses with fewer than 50 employees may be exempt from providing paid leave to employees dealing with school closures if doing so would jeopardize the viability of the business as a going concern. See DOL FAQ #4, 58-59 for details on the small business exemption for school closure leave.
What type of leave must employers provide?
The law creates two new types of leave for certain COVID-19 related absences:
- Emergency Paid Sick Leave. Covered employers must provide full-time employees with up to 80 hours of paid sick leave, while part-time employees are entitled to paid sick leave equal to the amount of hours they typically work in a two-week period. See DOL FAQ #5-6 for details on the calculations. This emergency sick leave is in addition to any other paid sick leave provided to employees under state law or city ordinances.
- Expanded Paid Family and Medical Leave. The law expands the federal Family and Medical Leave Act (FMLA) by requiring employers to provide up to 12 weeks of job-protected leave to employees who have worked for an employer for at least 30 days, most of which leave is paid.
Which employees qualify for these benefits?
For emergency paid sick leave, employees qualify for the sick leave benefits if they fall into one of the following six categories:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who fits into paragraphs (1) or (2) above.
- The employee is caring for a child whose school or place of care has been closed, or if the child care provider is unavailable, due to COVID–19 precautions.
- The employee is experiencing any other substantially similar condition.
For expanded family and medical leave, employees are eligible if they have been employed for at least 30 days and are unable to work or telecommute due to the need to care for a child at home due to school or daycare closure, or unavailability of a paid child care provider, because of COVID-19.
Does Governor Inslee’s Stay Home—Stay Healthy order count as a “state order of isolation” qualifying an employee for emergency paid sick leave?
If an employer does not have work available for an employee, the employee is not eligible for emergency paid sick leave or expanded family and medical leave under the FFCRA. This is true regardless of whether the closure is due to a COVID-19 related slowdown in business or the employer’s business closed or reduced by the Governor’s Stay Home—Stay Healthy order. Instead, these employees may be eligible for unemployment. See DOL FAQ #23-26 for more information.
How much must employers pay?
For emergency paid sick leave, employers must provide two weeks of full pay to qualified employees who are sick or quarantined (categories 1-3, above), up to a maximum of $511 per day and $5,110 total per employee. Employers must pay two-thirds the employee’s regular rate of pay to employees who use emergency paid sick leave to care for someone who is sick or quarantined or to care for children whose schools or daycare facilities are closed (categories 4-6, above), up to a maximum of $200 per day and $2,000 total per employee. Full-time employees may receive up to 80 hours of pay; part-time employees receive pay for the average number of hours they work during a two week period. See DOL FAQ #5-8 for details on calculating hours to be paid to employees.
For expanded family and medical leave, the first 10 days are unpaid (a period designed to be covered by emergency paid sick leave). For the remainder of the 12 weeks, employers must pay two-thirds of the employee’s usual rate of pay, capped at $200 per day and $10,000 total per employee.
What tax credits are employers entitled to receive for the amounts they pay?
Covered employers are entitled to receive a tax credit of 100% of the benefits paid up to the employee caps. Per the above, the cap for emergency sick leave is $511/day up to $5100 total if the employee is sick or quarantined or $200/day up to $2,000 total if the employee is caregiving, and for expanded family and medical leave the cap is $200/day up to $10,000 total. The credit is applied against payroll tax liability for the calendar quarter, and is refunded if the total credit exceeds the employer’s liability for that quarter. See DOL FAQ #15 and IRS Guidance for additional details and more information on documentation and processes for seeking a tax credit.
What notice must employers provide?
Covered employers must post a notice created by the Department of Labor, available here, by April 1. If employees are teleworking, employers should email the notice to employees or post it on an internal company website that employees regularly access. The DOL has posted FAQs specific to the employer notice requirement here.
Can existing sick leave count as emergency sick leave?
The emergency sick leave provided under the FFCRA is an extra two weeks of leave in addition to other leave offered by employers in compliance with local, state, or federal law or voluntary employer leave policies. See DOL FAQ #46. Employers may choose to allow employees to supplement their pay under the FFCRA with existing accrued leave up to 100% of their normal earnings. Employers will not receive a tax credit for any amounts paid in addition to the emergency paid sick leave. See DOL FAQ #31-34 for more information.
Is an employee’s leave job protected?
Generally, leave provided under the FFCRA is job-protected. However, an employer may lay off or terminate an employee on FFCRA leave if the employer would have done so regardless of whether the employee was on leave, such as if the employer’s worksite closes due to a lack of work or a government order. Employers should exercise caution and consult legal counsel before laying off or terminating employees taking FFCRA leave. Limited exceptions to job protection are available for employers with fewer than 25 employees, if certain criteria are met. See DOL FAQ #43 for details.
Can employers require employees to use accrued leave first?
Under the FFCRA, employers cannot force an employee to use vacation or other sick leave before they are eligible to use emergency paid sick leave or expanded family and medical leave.
Can employees take FFCRA leave intermittently?
For employees who are teleworking, employers are encouraged, but not required, to permit intermittent leave for both emergency paid sick leave and expanded family and medical leave if an employee has an intermittent qualifying need for the leave. For an employee teleworking, if the employer allows the intermittent leave, intermittent leave can be taken in any increment. For employees who are at the worksite, emergency paid sick leave for any use except childcare during school closures must be taken in increments of a full day, and the employee must continue taking paid sick leave until the full amount is used or they no longer have the qualifying reason. This restriction on intermittent use is designed to prevent people who are sick or caring for someone sick from coming to work and exposing others to COVID-19. An employer may choose to permit an employee who is coming to the worksite to take leave intermittently to care for a child whose school is closed. See DOL FAQ #20-21 for details.
What documentation should employers keep?
For each FFCRA leave request, employers should obtain and keep for 4 years a signed statement that contains:
- The employee’s name;
- The date(s) for which leave is requested;
- The COVID-19 qualifying reason for leave; and
- A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
If the employee is taking leave to care for a child whose school is closed, the employee must also provide: (1) the name of the child; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
If the employee is taking leave because of a health care provider’s advice to self-quarantine, the employee must also provide the health care provider’s name (a doctor’s note is not required). If the employee is caregiving for someone else who was advised to self-quarantine, the employee must provide that individual’s name and the name of their healthcare provider.
The employer may (and will often need to) get this written documentation after the employee’s leave begins or even concludes, especially for unforeseeable sick leave.
Employers should consult with tax professionals regarding the forms and record retention requirements for the FFCRA tax credit. See IRS Guidance for additional details.
What happens on termination or expiration of the FFCRA?
Emergency paid sick leave and expanded family and medical leave are available until December 31, 2020. Employees have no right or entitlement to cash out unused leave upon separation from employment or otherwise.
The Department of Labor continues to issue new guidance on the FFCRA, and employers are encouraged to regularly check here and on the Department of Labor’s website for updated information.
Please view Ryan Swanson’s COVID-19: Alerts & Resources for Businesses page to see the latest updates as the law and responses to COVID-19 continue to evolve, and feel free to contact any member of the Employment Rights, Benefits & Labor Group at Ryan Swanson if you have questions.
This webpage is provided for general informational purposes only and does not constitute legal advice.