Review your FFCRA practices

What is your experience with the Families First Coronavirus Recovery Act (FFCRA or ACT)?  Some of your organizations may have been closed when this law took effect on April 1, 2020, and are now returning to work. Others have been following the guidelines for months. Either way, now is a good time for a checkup of your practices.

The FFCRA requires certain employers to provide their employees with Paid Sick Leave or Expanded Family and Medical Leave for specified reasons related to COVID-19.

Most organizations scrambled to comply when the FFCRA was passed. There was a short time frame between introduction in the House of Representatives on March 11, 2020, and FFCRA taking effect on April 1, 2020. Since March, there have been amendments, guidance, interpretations, and regulations released on what feels like a daily basis – and this continues as we try to understand how FFCRA interacts with subsequent Coronavirus relief legislation,  the U.S. Department of Labor’s updates, and state and local orders.

It’s challenging to stay up-to-date on the latest rules and guidance. Here’s a chance to review against your practices:

Is your organization covered by FFCRA? 

The answer is, usually, “YES.” Private employers, including nonprofits and religious organizations, with fewer than 500 employees and certain public employers are covered and must provide Paid Sick Leave.

Some employers may be exempt from the paid Expanded Family and Medical Leave section of FFCRA:

  • Employers with fewer than 50 employees may be exempt from providing paid leave for childcare/school closings, but only when doing so would jeopardize the viability of the small business as a going concern. Small employers must still provide Paid Sick Leave for other reasons.
  • Federal public sector employees may be exempt from Expanded Family and Medical Leave.

Are all your employees eligible for FFCRA paid leave? 

Again, the answer is usually “YES.” All employees are immediately eligible for two weeks of Paid Sick Leave under the FFCRA. This includes full and part-time employees and may include employees provided through a temporary agency, depending on joint employer status. The exemptions are limited, and may include:

  • Health care Providers or Emergency Responders whose employers have elected to exclude such employees.
  • Furloughed and laid off employees, depending on the dates.

Employees must have been employed for at least 30 days to receive up to 12 weeks of paid Expanded Family and Medical Leave. The same exemptions apply:

  • Health care Providers or Emergency Responders whose employers have elected to exclude such employees,
  • Furloughed and laid off employees, depending on the dates, and
  • Most Federal public sector employees are exempt from Expanded Family and Medical Leave.

Considering the broad coverage for most employers and employees, if you haven’t been providing any paid leave under FFCRA, we recommend you consult with legal counsel. Our Employment Law Services department is happy to help review your specific situation.

Here are some additional areas to review if you are covered by FFCRA:

Have you posted the required notice?

In addition to posting in a conspicuous place where employees or job applicants at a worksite may view it, an employer may distribute the notice to employees who work from home by email or post the required notice electronically on an employee information website to satisfy the posting requirement. Posters are available in thirteen different languages, along with a notice for Federal employees.

Are employees providing documentation of the need for leave?

FFCRA requires an employee to provide documentation before taking Paid Sick Leave or Expanded Family and Medical Leave. Employers Council has created a form that includes the information specified by the Department of Labor. This information can vary, depending on the reason for leave. This documentation is also needed if your organization will be applying for COVID-19 related tax credits.

Are you maintaining all information about employee illness in a confidential medical record?

The Americans with Disability Act (ADA) requires that all medical information about an employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files, including an employee’s statement thattheyhas the disease or suspectstheyhas the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

Have you trained your supervisors and managers on the basics of FFCRA?

Like FMLA, supervisors, and managers should alert Human Resources if they become aware that an employee’s absence may be covered by FFCRA. Ensure managers understand that they may not retaliate or discriminate against employees who take leave.

Have you checked with your tax advisor?

The FFCRA provides businesses with tax credits to cover certain costs of providing employees with required paid sick leave and expanded family and medical leave for reasons related to COVID-19, from April 1, 2020, through December 31, 2020. While tax advice is outside our scope at Employer Council, we recommend you also check on the interaction of FFCRA tax credits with other programs available under The Coronavirus Aid, Relief, and Economic Security (CARES) Act such as the Payroll Protection Program. An overview can be found on the IRS website.

Have you reviewed your compensation and payroll practices?

For purposes of the FFCRA, the regular rate of pay used to calculate paid leave is the average of the regular rate over a period of up to six months prior to the date on which the employee takes leave. If the employee is paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

Employers can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours worked in the same period.

Have you established pay codes for Paid Sick Leave?

Employees are paid at the regular rate of pay when the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), or experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employees are paid at 2/3 the regular rate of pay when the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19

Are you tracking Paid Sick Leave for a maximum of two weeks?

While you may assume this is 80 hours for full-time employees, the actual hours depend on the employee’s regular workweek and would be less than 80 hours for part-time employees.

Are you capping Paid Sick Leave at $511 per day and $5110 in total?

You may choose to pay more than this limit, but be aware the tax credit is only available for up to $511 per day.

Have you established pay codes for Expanded Family and Medical Leave?

Employees are paid at 2/3 the regular rate of pay when the employee is unable to work because of a bona fide need to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19

Are you tracking Expanded Family and Medical Leave for a maximum of ten weeks? 

Are you capping Expanded Family and Medical Leave at $200 per day and $10,000 in total? You may choose to pay more than this limit, but be aware the tax credit is only available for up to $200 per day.

Have you maintained the employee’s regular deductions?

FFCRA does not distinguish qualified leave wages from other wages an employee may receive. Ensure the same rules that generally apply to an employee’s regular wages would apply from the employee’s standpoint; including standard deductions for employer-sponsored health plans, 401(k) or other retirement plans, or any other benefits. Qualified leave wages are wages subject to withholding of federal income tax and the employee’s share of social security and Medicare taxes.

Many payroll service providers moved quickly to revise systems to help your recordkeeping and administration of FFCRA.

Are you covered by any state or local paid leave programs?

Colorado has a Health Emergency Leave with Pay (“Colorado HELP”) that temporarily requires that certain employers provide paid sick leave to employees who may be impacted by COVID-19. Although Colorado HELP overlaps with FFCRA, it may require an employer to provide sick leave if an employee has already exhausted all other paid leave. We recommend checking state websites, including these Utah, Arizona, and Wyoming,f for additional paid leave requirements.

The Families First Coronavirus Relief Act (FFCRA) is effective through December 31, 2020. These are general recommendations for reviewing some areas for compliance. Employers Council representatives are here to help you with situations specific to your workplace. For the latest news and updates on COVID-19, visit our Coronavirus resource page, and call the Council with questions.