FAMILY FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

Covenant Services is committed to keeping our clients up to date regarding the government response to the COVID-19 virus. Our goal is to provide the latest information in real-time so our clients can make the necessary decisions to protect their business and employees.

On March 18, FFCRA (H.R. 6201) was signed into law.  The act provides paid sick leave and paid emergency family leave for specific situations related to the COVID-19 pandemic.  The act only applies to businesses with less than 500 employees.  It began on April 1, 2020 and will be effective through December 31, 2020.   There are two different types of paid leave available with this act.

PAID SICK LEAVE

The paid sick leave portion provides 10 days of paid leave (up to 80 hours) for employees who are unable to work (or unable to telework) because the employee: 

1.       is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2.       has been advised by a health care provider to self-quarantine related to COVID-19;

3.      is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4.      is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5.      is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or

6.      is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The rate of pay varies depending on the type of leave needed.  If an employee is eligible for paid sick leave due to reasons 1 – 3 (above), the employee will be paid at 100% of his/her regular rate of pay up to $511/day.  If an employee is eligible for paid sick leave due to reasons 4 - 6 (above), the employee will be paid at 2/3 of his/her regular rate of pay up to $200/day.  An employee who is eligible for paid sick leave due to reason 5 is also eligible for enhanced FMLA leave. 

For employees who are not teleworking, the Department of Labor (DOL) has indicated that paid sick leave can only be used intermittently due to reason number 5 and only if your employer agrees.  If you use paid sick leave for any other reason (numbers 1-4 or 6), those days would need to be taken concurrently until you use the full amount or no longer have a qualifying reason to take the leave.  For those employees who are teleworking, paid sick leave can be used intermittently, as long as your employer agrees.  The DOL has further clarified that if an employee does not use the full 10 days allowed under this act, they would be eligible to use the remaining days for a separate leave, should they have another qualifying reason. 

EMERGENCY FMLA LEAVE

To be eligible for EFMLA (or EFMLEA) leave, an employee must have been employed for at least 30 days.  There is only one qualifying reason for EFMLA:  The employee is unable to work (or telework) because the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19. 

EFMLA provides 12 weeks of leave.  The first two weeks are unpaid, but the paid sick leave can be used during these first two weeks.  Weeks 3 through 12 are paid at 2/3 the employee’s regular rate of pay, up to $200/day. 

USING FFCRA

Any employee who would like to request FFCRA paid leave (either kind) needs to fill out a COVID Leave Request Form.  This form along with appropriate documentation regarding the need for leave should be submitted to Human Resources within 3 days of your need to utilize this leave.  Any delay in paperwork could delay your payment under this act. 

REQUIREMENTS

Employers are required to post a notice in a conspicuous place that informs employees of their rights under FFCRA.  In addition, no employer may discriminate or retaliate against an employee because of their need to use paid leave time under FFCRA.  

ELIGIBILITY

An employee is eligible for paid leave through FFCRA as long as there is work to be done and the only reason the employee cannot work is because of one of these reasons.  If the employer has closed its doors for a COVID-19-related reason, the employee is no longer eligible for paid leave.  Likewise, if the employee is able to work or telework, but there is not enough work to do because the business has slowed down due to the COVID-19 pandemic, the employee is not eligible for paid leave.   In both of these situations, the employee should be instructed to contact Texas Workforce Commission and file a claim. 

RETURNING TO WORK

Under the FFCRA, the employer may refuse to return the employee to work in the same position if all four of these conditions exist:

·         the employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19-related reasons during the period of his/her leave

·         the employer has made reasonable efforts to restore the employee to the same or equivalent position

·         the employer makes reasonable efforts to contact the employee if an equivalent position becomes available AND

·         the employer continues to make reasonable efforts to contact you for one year beginning either on the date the COVID-19-related leave concludes or the date 12 weeks after the leave began, whichever is earlier. 

FMLA/EFMLA

If an employer meets the eligibility requirements for FMLA leave, this emergency FMLA leave does not allow an additional 12 weeks of leave.  An employee is only eligible for a total of 12 weeks of leave for both FMLA and EFMLA.  If an employee has already used his/her entire 12 weeks allowed under FMLA leave, they are not eligible for additional time under EFMLA, even if a qualifying reason exists. 

DOCUMENTATION

The IRS and DOL have indicated that documentation supporting an employee’s request for leave not only should be required but MUST be required.   In addition to the COVID Leave Request form, the employee needs to provide the following information:

1.        If subject to a quarantine or isolation order:  Name of government entity ordering the quarantine.

2.       If advised by a health care provider to self-quarantine:  Name of health care provider.

3.       If caring for an individual subject to quarantine or self-quarantine:  Name and relationship of person as well as the government entity or health care provider. 

4.       If school/childcare closure:  Name and age of child(ren) as well as the name of school/childcare facility.  For this reason, the employee must also state that there is no other person who will be providing care for the child during the period that the employee will be on leave.  If the child is over 14 years old, the IRS has indicated that the employee must also provide a statement that special circumstances exist requiring the employee to provide care. 

HEALTH CARE PROVIDER

The DOL has defined a health care provider (who can provide documentation of need for paid leave) as a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for the purposes of FMLA. 

PLACE OF CARE/CHILD CARE PROVIDER

The DOL has defined place of care as a physical location in which care is provided for your child.  It does not have to be solely dedicated to such care.  Examples include day care facilities, preschools, before and after school programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.  The DOL has defined “childcare provider” as someone who cares for your child.  This can include individuals who are paid to watch your child (nannies, au pairs, and babysitters).  It can also include those who provide care at no cost (grandparents, aunts, uncles, neighbors).