RMI knows that you have been inundated recently with information related to both the original federal aid legislation (the Families First Coronavirus Response Act, or the “FFCRA”) and the second major piece of legislation (the Coronavirus Aid, Relief, and Economic Security Act, or the “CARES Act”). RMI has attempted to mitigate the amount of that inundation by limiting the information that we send out. Well, it’s time to provide some clarifying information to you regarding the FFCRA. Before that, though, we wanted to provide you with a brief synopsis of what that Act provides and then we’ll address the exemptions in a little more detail.
PAID LEAVE UNDER THE FFCRA
As you probably know by now, the FFCRA has two primary components: the Emergency Paid Sick Leave Act (“Emergency Sick Leave”) and the Emergency Family and Medical Leave Expansion Act (“Emergency Family Leave”). In general, Emergency Sick Leave requires covered employers to provide eligible employees up to two weeks of paid sick leave at full pay (up to a cap of $511 per day) when the employee is unable to work for the following reasons:
- because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; note, however, that according to the most recent DOL guidance, this does not include state or local shelter-in-place or stay-at-home orders;
- because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- because the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
Emergency Sick Leave also provides up to two weeks of paid sick leave at 2/3 pay (up to a cap of $200 per day), when an employee is unable to work for the following reasons:
- because of a need to care for an “individual” who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (this does not have to be a family member; according to DOL regulations, “individual” means an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined);
- because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose child-care provider is unavailable, due to COVID-19 related reasons; or
- because the employee is experiencing a substantially similar condition, as specified by the Secretary of Health and Human Services.
Importantly, employers will receive a tax credit of 100% of the qualified leave pay (including withheld federal income tax, both the employee’s and employer’s share of Medicare and social security taxes, and the pro-rata share of the employer’s health plan expenses) that they pay to an employee under the reasons set forth above. That is Emergency Sick Leave in a nutshell.
By contrast, Emergency Family Leave provides for 12 weeks of leave, the first two of which are unpaid. If, however, the employee qualifies for Emergency Family Leave because of reason number 5 above, then those first 2 weeks would be paid under Emergency Sick Leave, before transitioning to Emergency Family Leave for the final 10 weeks. Similarly, if the employee has and wants to use (their choice) accrued leave under your leave policies, then the employee may do that for those first 2 weeks. The leave available under Emergency Family Leave is paid at 2/3 the employee’s regular rate of pay, not to exceed, however, $200 per day. Â New federal Department of Labor regulations provide that, while an employee is receiving 2/3 of their regular pay during their Emergency Family Leave, the employee may elect or the employer may require the employee to use leave that would otherwise be available to an employee under existing policies (e.g., accrued leave). This would allow an employee to remain in fully paid status by supplementing Emergency Family Leave benefits with accrued leave. Remember, though, that the available tax credits that you can receive are limited to the benefits provided by the FFCRA. One final note on Emergency Family Leave: the new regulations explain that, where an employee has already taken some regular FMLA leave in the current twelve-month leave year as defined by the FMLA, the maximum twelve weeks of Emergency Family Leave is reduced by the amount of the FMLA leave taken in that year. However, if an employee has exhausted their twelve weeks of FMLA or Emergency Family Leave, he or she may still take Emergency Sick Leave for a COVID-19 qualifying reason.
EXEMPTIONS UNDER THE FFCRA
Basically, the FFCRA provides for several exemptions from its requirements.
The law states that an employer may exclude health care providers and emergency responders from application of the law. DOL regulations then define “health care provider” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” So, in short, all employees of one of the health care provider-type entities listed above should be exempted from the requirements of the FFCRA. That said, the DOL has requested that employers that are health care providers use this exemption cautiously because it could be subsequently challenged.
In addition, there is also a potential exemption for smaller (i.e., under 50) employers. The DOL regulations provide that any employer with fewer than 50 employees is exempt from providing leave under the FFCRA if doing so “would jeopardize the viability of the business as a going concern.” To claim this exemption, an authorized officer of the business must determine that:
- providing the leave 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; Â
- granting leave to an employee or employees would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- 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, and the labor or services are needed for the small business to operate at a minimal capacity.
At this point, the DOL is not requiring that you provide it with documentation of this determination. However, businesses making this determination should document the reasons for the determination and retain that documentation in case the determination is challenged at a later date.
The FFCRA also includes language providing that an employer with fewer than 25 employees will not be obligated to restore an employee following Emergency Family Leave where:
- the position held by the employee no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency;
- the employer makes reasonable efforts to restore the employee to an equivalent position; and
- if no equivalent position is available, the employer makes reasonable efforts to contact the employee about other equivalent positions for one year.
Attached is the required FFCRA poster, which you must post with other workplace posters at each work site. Also please see the Families First Coronavirus Response Act (FFCRA) Leave Request Form:Â for any employees needing to request leave under the FFCRA, please provide them with this request form. Both the employee and you will need to complete this form and provide it to your HR representative at RMI, along with documentation from the employee to substantiate the reason for their request. RMI’s HR team will be working diligently to review and approve requests and will notify both you and your employee when a request is approved or denied. For approved requests, we have three new pay codes available for you to use when submitting payroll, whether via RMI Time or another reporting method. Please be aware that pay under these pay types will not be processed until requests are approved due to the applicable tax credits.