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This information is up to date as of the above date. We are monitoring the Families First Coronavirus Response Act (FFRCA) and similar legislation that may require pay during COVID-19 closures or leave, and will provide updates as they occur.
We've updated this document to include the following additional guidance provided by the Department of Labor:
- The Department of Labor has now issued a model notice on their website
- Clarification of the total leave allowed under the FFCRA (10 weeks paid plus 10 days unpaid)
There are two paid leave provisions of the Act that employers with fewer than 500 employees should be aware of:
(1) the Emergency Family and Medical Leave Expansion Act
(2) the Emergency Paid Sick Leave Act.
The Act also provides refundable tax credits for employers who provide paid emergency sick leave or paid FMLA
1. Emergency Family and Medical Leave Expansion Act
For companies with fewer than 500 employees , the Act provides employees with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act (“FMLA”) for certain reasons related to the COVID-19 pandemic.
Here are the key points that employers need to know:
Who Is Eligible? An employee who has been employed for at least 30 days and is unable to work ( or telework) due to a need to care for minor children due to the following reasons:
(a) a school or place of care has been closed; or
(b) the child care provider of such children is unavailable due to a public health emergency (defined as an emergency with respect to COVID-19 declared by a federal, state, or local governmental authority)
What Are Eligible Employees Entitled To?
( a ) 10 days of unpaid leave (the employee may choose to substitute accrued paid time off or other medical or sick leave during this period); and
( b ) 10 weeks of paid leave at a rate of two-thirds of the employee’s regular rate of pay, at the number of hours that the employee is regularly scheduled to work. Paid leave cannot exceed $200 a day or $ 10 ,000 in total.
In the aggregate, employees can take up to 12 weeks of leave under the FFCRA, which includes 10 weeks of paid leave and 10 days (or two weeks) of unpaid leave.
Is the Job Leave Protected? Yes. This leave is job-protected and an employer must return the employee to the same or equivalent position upon their return to work.
Exception: companies w/ less than 25 employees if the employee’s job no longer exists due to the coronavirus pandemic , provided that the employer has made reasonable efforts to restore the employee to an equivalent position.
Are there Notice Provisions? Yes. Employees should notify their employers of their need for the leave as soon as possible.
This provision of the Act will take effect no later than April 2 , 2020 and expires on December 31 , 2020.
2. Emergency Paid Sick Leave Act
If a company has fewer than 500 employees , then the employees are entitled to up to 2 weeks (80 hours ) of paid sick leave.
Who Is Eligible? All employees that are unable to work ( or telework) for 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 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 an order to quarantine or self-isolate or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(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; or
(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.
How Much Are Employees Required to Be Compensated?
Paid sick time shall not exceed:
( a ) $511/ day and $5110 in the aggregate for employees utilizing the leave for reasons (1) – (3) listed above; and
( b ) $200/ day and $2000 in the aggregate for employees utilizing the leave for reasons (4) – (6) listed above.
For reasons (1) – (3), the pay must be provided at an employee’s regular rate of pay (which must equal or exceed minimum wage); for reasons (4) – (6), the rate of pay must be no less than two-thirds of the employee’s regular rate of pay or the minimum wage (whichever is greater).
The Secretary of Labor is required to issue regulations regarding how the above should be calculated. We will continue to provide updates as the Secretary of Labor issues regulations.
How Much Leave Are Eligible Employees Entitled To?
(a) Full time employees: up to 2 weeks (80 hours ) of paid sick leave.
( b ) Part-time employees : number of hours of paid sick time equal to the number of hours they work, on average, over a 2-week period .
How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave? A part-time employee is entitled to leave for his or her average number of work hours in a two-week period . Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee ’ s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period , and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
When calculating pay due to employees, must overtime hours be included? Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.
However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period . For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.
Also keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave.
Are there Notice Requirements? Employers must post in a conspicuous place on its premises a notice of
FFCRA requirements . The Department of Labor has issued a model notice
on their website.
Can an Employer Require an Employee to Utilize Other Paid Leave Before Accessing Emergency Paid Leave? No.
Do Employers Need to Pay out Unused Leave Under the Act Upon Separation of Employment? No.
This provision of the Act will take effect no later than April 2 , 2020 and expires on December 31 , 2020 ( unused leave cannot carry over to 2021).
Tax Credits and Tax Issues
Initially, employers will bear the brunt of expenses associated with the new paid sick and paid FMLA leave benefits. The Act, however, provides tax credits to help reimburse employers for wages paid while employees are on paid sick and paid FMLA leave :
(a) Paid sick leave credit: Equal to the wages actually paid, up to a maximum of $511 per day while an employee is on paid sick leave to care for themselves, and $200 per day if the employee is on paid sick leave to care for a family member or child.
- The credit is limited to 10 days per employee.
- The credit is refundable to the extent it exceeds the amount the employer owes in payroll taxes.
(b) The paid FMLA leave credit for each employee is limited to $200 per day, up to a maximum of $ 10 ,000.
- The paid FMLA credit is not available to employers already receiving a credit under the Tax Cut and Jobs Act.
- The credit is refundable to the extent it exceeds the amount the employer owes in payroll taxes.
This provision of the Act will take effect no later than April 2 , 2020 and expires on December 31 , 2020.
Please note that we are updating COVID-19 related articles on a daily basis to adhere to updated guidance and feedback from our customers.
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