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Family First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) Poster­is required to be posted and distributed to all employees by April 1, 2020.­

FFCRA Notice Frequently Asked Questions

This Act is effective on April 1, 2020.

Families First Coronavirus Response Act - Frequently Asked Questions.

For more information please visit the ­Department of Labor's­website.­ ­­


COVID-19’s Impact on Employers:

DOL’s Updated Q&A (Update #3)

Courtesy GrayRobinson

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The FFCRA goes into effect on April 1, 2020.­ As we get closer to that date, the Secretary of Labor has been updating its Questions and Answers guidance on the FFCRA.­The DOL has provided guidance on some burning questions, such as how a small business (fewer than 50 employees) may qualify for an exemption, how the “health care provider” and “emergency responder” exemptions are defined, what documentation may be requested, whether an employer has to maintain health coverage during paid leave, and whether an employee can supplement the PSL or paid FMLA with paid sick leave otherwise provided by the employer.­

This guidance also confirms that, absent military caregiver leave, an employer is only required to provide a total of 12 workweeks of FMLA leave, whether paid or unpaid, and the FFCRA does not create a separate entitlement to an additional 12 weeks of leave.­ Additionally, paid leave under the FMLA or PSL cannot be taken intermittently unless the employer agrees to it and key employees under the FMLA can be denied reinstatement after taking paid FMLA leave. The DOL also expanded the definition of “son” or “daughter” under the FFCRA.­

A summary of the guidance is below. Please remember that this Q&A is guidance, not the regulations, which are still forthcoming.­These issues are complex and we are available to answer your questions.

Small Business Exemption

Any employer, including a religious or nonprofit organization, with fewer than 50 employees may claim the exemption for expanded FMLA leave and emergency paid sick leave if an authorized officer of the business has determined that:

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  • Complying with the FFCRA’s leave provisions would result in expenses exceeding available revenues and cause the business to cease operating at a minimal capacity;
  • Absence of employees requesting FFCRA leave would entail substantial risk to the financial health or operation of the business due to the employees’ specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient qualified workers to replace the employees seeking FFCRA leave and the labor or services of the employees are needed for the business to operate at a minimal capacity.
  • The exemption only applies to FFCRA leave to care for a son or daughter due to school closures and/or child care unavailability.
  • No application is required.­ The business simply denies the leave.­

Definition of "Son or Daughter"

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The DOL now includes a child for whom the employee is standing in loco parentis as well as an adult child who has a mental or physical disability and is incapable of self-care because of that disability.

"Health Care Provider" Exemption

  • The DOL has expanded the definition for the exemption to include anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, or any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
  • It includes any temporary or permanent facility where medical services are provided and any entity that contracts with any of the above institutions to provide services or maintain the covered facility.
  • This is a broader definition than “health care provider” under the FMLA.­ The FMLA definition still applies to determine who can provide advice to self-quarantine as a covered reason for leave under PSL
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  • The employer makes the decision whether to exclude an employee as a “health care provider.”­ There is no application.

"Emergency Responder" Exemption

  • The DOL has defined “emergency responder” as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of patients or whose services are otherwise needed to limit the spread of COVID-19.­
  • It provides a non-exhaustive list to include military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and 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.
  • The employer makes the decision whether to exclude an employee as an “emergency responder.”­ There is no application.

Health Insurance Continuation

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Employers must continue to provide health coverage (if the employee previously elected such coverage) during paid FMLA leave and PSL, but employees are required to make any normal premium contributions. ­

Benefits in Excess of FFCRA Requirements

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Employers who exceed the paid leave requirements of the FFCRA will not receive tax credits for the amounts in excess of the FFCRA’s statutory limits.

Employer Benefits Concurrent with FFCRA Benefits

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Employees may not receive FFCRA paid leave and employer-provided sick leave for the same hours.­ Thus, if the employee is receiving full pay under the FFCRA, he or she may not use employer-provided sick leave.­ However, if the employee is receiving 2/3 pay under the FFCRA, the employee may supplement with accrued employer-provided leave, if the employer agrees, in order for the employee to receive the remaining 1/3 pay.


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UPDATE: Families First Coronavirus Response Act (FFCRA) Enacted in Response to COVID-19

Courtesy of GrayRobinson

As we reported last week, on March 18, 2020, President Trump signed into law a bill with two significant provisions impacting employers with fewer than 500 employees and public employers (regardless of their size). While the FFCRA is to become effective “no later than” 15 days after it is enacted, we expect that it will not become effective until the last of the 15 days, which is April 2, 2020.­ The FFCRA­ sunsets on December 31, 2020. The FFCRA is not retroactive. The full text of the final bill can be viewed here.

The FFCRA provides some tax relief for private employers. Public employers are excluded from the tax relief provisions.

We participated in the Department of Labor’s (DOL) town hall (virtual) which was held on Friday, March 20, 2020. The DOL was seeking public input on areas of the FFCRA that the participants felt needed clarification. The DOL confirmed that it will issue regulations to address certain provisions in the FFCRA. We expect it will issue guidance for other provisions but that has not been confirmed. Given the short time until implementation of the FFCRA, we may not see the guidance until after the FFCRA is effective.

The DOL and the IRS issued News Releases late last week that provide some additional clarification on what we can expect as the FFCRA goes into effect. These resources are available at: https://www.dol.gov/newsroom/releases/osec/osec20200320 and at https://www.irs.gov/coronavirus.

The DOL has stated that it will be issuing a temporary non-enforcement policy that provides a period of time – expected to be 30 days - for employers to come into compliance with the FFCRA. According to the DOL, it will not bring an enforcement action against an employer who violates the FFCRA “so long as the employer has acted reasonably and in good faith to comply” with the FFCRA; instead, the DOL will focus on compliance assistance during this­ 30-day period.

We have provided a brief overview of FFCRA law below with some provisions updated from the last e-lert to address and clarify the law based on additional information we have obtained. We are glad to answer any questions and help you navigate these difficult issues. Please reach out to your GrayRobinson employment law team contact with any questions you may have.

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FFCRA Employer Requirements

Division C – Emergency Family and Medical Leave Expansion Act

  • Amends the FMLA to include a qualifying need related to a public health emergency and requires up to ten (10) weeks of paid leave.
  • Defines “eligible employee” as an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested.
  • Sets the “employer threshold” as private employers who employ “fewer than 500 employees.” (This language replaces “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year”)­ The remaining definitions of an “employer” under the FMLA were not changed; therefore this FMLA emergency leave also applies to public employers as it did before this amendment.
  • Defines “qualifying need related to a public health emergency” as a situation where the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
  • Defines “public health emergency” as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority."
  • Requires employers with less than 500 employees, and public employers, to provide up to 12 weeks of FMLA leave due to a qualifying need related to a public health emergency.
  • Employees must provide notice as practicable if the need for leave is foreseeable.
  • The first 10 days of such leave may consist of unpaid leave.
  • However, an employee may choose to use any accrued vacation, personal, sick, or medical leave during the initial 10 days of leave.­ The employer may not require the use of the accrued paid leave.­ And while the DOL has been asked to confirm this in its guidance, it appears that an employee may use Emergency Paid Sick Leave for this initial 10 days (see below).
  • The employer must pay at least two-thirds of an employee’s normal wages for the remainder of the FMLA leave (which is up to the remaining ten (10) weeks of leave).
  • The above amount is calculated based on two-thirds of the employee’s regular rate of pay and the number of hours an employee would otherwise be normally scheduled to work.
  • When an employee’s hours vary, the employer averages the number of hours that an employee was scheduled per day over the immediate 6 month period.
  • If the employee did not work over the previous 6 month period, then the employer must use the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally work.
  • However, paid leave shall not exceed $200 per day and $10,000 in the aggregate.
  • Employers with 25 or more employees must restore an employee to the employee’s pre-leave position or equivalent position in accordance with the normal requirements of the FMLA.
  • The restoration requirements of the FMLA shall not apply to employers with less than 25 employees under the following conditions:
  • The position no longer exists due to the economic and/or operating effects of a public health emergency during the period of leave.
  • Employer makes­reasonable­efforts to place the employee in an equivalent position.
  • The employer makes reasonable efforts to contact the employee for a period of­1 year­when an equivalent position becomes available.
  • The Secretary of Labor (via the DOL) is to issue regulations which exclude certain health care providers and first responders from eligibility under the Act. Clarifying definitions are expected. The regulations will also address the standards for determining an exemption for certain small businesses with fewer than 50 employees the ability to forgo the above amendments to the FMLA if imposition of such requirements would jeopardize the viability of the business. Small business has not been defined so it is not clear if this definition encompasses only private employers or if small public entities may also be eligible for an exemption.
  • Expressly provides that employers of health care providers as defined in the FMLA or emergency responders may elect to exclude such employees from the requirements of the above amendments to the FMLA.
  • Employers that do not have 50 or more employees are not subject to private action under the FMLA. The DOL, however, can bring an enforcement action against the employer.
  • Effective no later than 15 days after enactment; April 2, 2020.
  • Sunsets and expires on December 31, 2020.
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Division E – Emergency Paid Sick Leave Act

  • Requires covered employers to provide employees with two (2) weeks of emergency paid sick leave.
  • Defines “covered employers” as private employers with fewer than 500 employees or public agencies or other public employers who employ 1 or more employees.
  • Available to all employees of a covered employer regardless of how long the employee has been employed.
  • Employer of a health care provider or emergency responder may elect to exclude such employee from the application of the paid sick time requirement.
  • Covers employees who are in need of leave for the following six (6) 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 as described in 1 or 2 above.
  5. The employee is caring for a son or daughter of such employee if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition.
  • Covered employers must compensate full-time employees who take leave for reasons 1 through 3 above at their regular rate of pay for 80 hours or, for part-time employees, the number of hours such employees work on average over a two-week period. (Shall not exceed $511 per day and $5,110 in the aggregate)
  • Compensation for reasons­4 through 6­above is at­two-thirds­of the 2 week compensation amount. (Shall­not exceed $200 per day­and­$2,000­in the aggregate)
  • Employers may not require that an employee find coverage for the employee’s missed shifts due to the use of emergency paid sick leave.
  • Employers must post notice of the availability of emergency paid sick leave in conspicuous places and such model notice will be provided by the Secretary of Labor within 7 days of enactment of this Act. We expect this model notice to be issued on Wednesday, March 25, 2020.
  • Employers may not require that an employee use other paid leave prior to the use of the emergency paid sick leave. Rather, the employee has the option to decide what available paid leave it will use.
  • It is unlawful for employers to discharge, discipline, or discriminate against an employee who takes leave under the Emergency Paid Sick Leave Act or files a complaint or proceeding related to the Emergency Paid Sick Leave Act.
  • Violations of the provisions for emergency paid sick leave are considered the same as either an employer’s failure to pay minimum wages under the FLSA (29 U.S.C. 206) or considered retaliation in violation of 29 U.S.C. 215(a)(3).
  • The Emergency Paid Sick Leave Act provides the Secretary of Labor the authority to issue regulations which allow employers to exclude certain health care providers first responders from eligibility under the Emergency Paid Sick Leave Act and to certain small businesses with fewer than 50 employees the ability to forgo the above requirements if imposition of such requirements would jeopardize the viability of the business. This small business exemption is only available for the requirements to provide leave to care for a child whose school is closed or child care is unavailable in cases where the viability of the business is threatened. See number 5 in the above list of reasons for leave.
  • Effective no later than 15 days after enactment; April 2, 2020.
  • Sunsets and expires on December 31, 2020.
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Division G – Tax Credits for Paid Sick and Paid Family and Medical Leave

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The tax credits are available only for private employers. Key takeaways from the DOL regarding this provision are as follows:

  • Complete Coverage
  • Private employers receive 100% reimbursement for paid leave pursuant to Emergency Family Medical and Leave Expansion Act and the Emergency Paid Sick Leave Act.
  • Health insurance costs are also included in the credit.
  • Employers face no payroll tax liability.
  • Self-employed individuals receive an equivalent credit.
  • Fast Funds
  • Reimbursement will be quick and easy to obtain.
  • An immediate dollar-for-dollar tax offset against payroll taxes will be provided.
  • Where a refund is owed, the IRS will send the refund as quickly as possible.
  • To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
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For more information refer to the resources referenced above and look for further updates from us.

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GrayRobinson leverages its capabilities through membership in specially-selected law firm affiliations. One of these is the­Employment Law Alliance­(ELA), a select group of highly respected, broad-based law firms that are capable of servicing virtually every legal need for their corporate clients. ELA has a presence in all 50 U.S. states, the District of Columbia and more than 300 cities around the globe. ELA is ranked as one of only three law firm networks in­Chambers USA­in the "Employment: The Elite in Global-Wide" category.

 

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