FAMILIES FIRST CORONAVIRUS RESPONSE ACT ("FFCRA")
Providing Emergency COVID Leave
- The FFCRA—in addition to expanding FMLA coverage—has created a new category of paid time off that, while capped lower than the FMLA, has to be provided to a broader range of employees.
- Specifically, any employee (full or part time) who is working for a business starting on April 1, 2020, regardless of the length of that employment, will be covered by the FFCRA Emergency COVID-19 Coverage which orders employers to provide 80 hours of paid sick leave to full time employees (Part time employees receive the number of hours that they work--on average--over a two week period[1]) immediately within the following guidelines:
- This coverage provides that payment at full pay scale (capped at 511/day and 5,110/total) be paid to any employee who cannot work times when they would otherwise be working who:
- Experiences COVID-19 symptoms and is seeking medical diagnosis;
- Has been instructed to remain home by a health care provider due to COVID-19;
- Has been placed under a federal, state, or local quarantine order;
- This coverage provides that payment in the amount of 2/3 regular pay (capped at 200/day and 2,000/total) be paid to any employee who cannot work times when they would otherwise be working who:
- Is caring for a family member who is subject to a quarantine order or has been instructed to self-quarantine by a health care provider;
- Is caring for a son or daughter because the child’s school or place of care has been closed due to COVID-19
- They are experiencing any substantially similar condition as specified by the Secretary of Health
- This COVID-19 Emergency leave is in addition to any sick leave that employees already have pursuant to employer sick leave plans. The FFCRA does not permit employers to replace previously created sick leave with COVID-19 Emergency leave, it must be in addition.
- The Department of Labor - Wage and Hour Division has created the poster above, for posting by all employers eligible under the FFCRA and the FMLA Extension. Available here.
- COVID-19 Leave Pay will be Tax Credited to the Business, dollar for dollar for all employees paid on COVID-19 leave.*
* May be capped at certain limits, including the total tax liability + the expenses of providing employee medical coverage.
Department of Labor
Regulations have recently been released for the FFCRA, as these regulations are interpreted businesses can seek guidance from Employment Attorneys like those at Brandon T. Bybee, P.L.C., and use the Department of Labor's resources.
FAMILY & MEDICAL LEAVE ACT ("FMLA") EXPANSION
Additional Information
- FFCRA expands FMLA coverage in two ways:
- First, it provides coverage to employees who have to stay home to care for children due to a closure of school or daycare because of COVID-19.
- The FMLA coverage for these employees taking leave for this reason is capped at $10,000.
- Second, the FFCRA expands coverage to all employees of businesses under 500 total employed who have been working for the employer for at least 30 calendar days (regardless of the hours worked in those days).
- Caveat: (there may be an exception to coverage for employers with under 25 employees if complying with expanded coverage will make it impossible for them to continue to operate. The standard for this exemption will be created by the Department of Labor and this site will be updated with that standard once it is published by the DOL).
- First ten (10) days of FMLA Leave:
- Under the FMLA the first 10 days of leave are unpaid. However, employees have been allowed to use PTO and sick leave to cover these days under the FMLA to ensure continuous payment.
- Under the FFCRA, employees may request (if applicable to them) that the first ten (10) days of FMLA leave be covered by COVID Emergency Pay (described above).
- If an employee requests to use COVID emergency pay, an employer cannot subsequently require that they use their PTO or sick days to cover the first 10 days of FMLA leave.
- If an employee requests to use COVID emergency pay, an employer cannot subsequently require that they use their PTO or sick days to cover the first 10 days of FMLA leave.
- FMLA Leave Pay "pursuant to this act," will be Tax Credited to the Business, dollar for dollar for all employees paid on said leave.*
* May be capped at certain limits, including the total tax liability + the expenses of providing employee medical coverage.
VIRGINIA SPECIFIC EMPLOYER COVID-19 RULES
- Executive Order 53, which in itself only mandated the close of certain business and suggested that social distancing policies be complied with, has been made into an order by Governor Northam’s recent stay at home order.
- Businesses that are not essential are being told to have employees work from home where possible and are ordered to comply with the rules limiting gatherings to fewer than 10 persons and mandating that all persons maintain a distance of 6 feet between them.
- The order purports to close down “non-essential” businesses, but in its wording only truly closes entertainment and public dining venues, leaving open many other businesses provided they comply with the 10 person social distancing rule.
- Possible business solutions include adopting formal internal cleaning and distancing procedures that are in compliance with, and in furtherance of, the Governor’s order(s).
Virginia Executive Orders
Governor Northam has issued several Executive Orders relevant to Virginia businesses, including designating which businesses are "essential."
TAX IMPLICATIONS & RECOVERY FOR COMPLIANCE
Tax Implications and Recovery of Cost for Compliance
- The FFCRA includes provisions that will enable employers to recover the cost of compliance with expanded FMLA coverage and the additional Emergency COVID Leave.
- The FFCRA provides a credit (not a deduction) for paying compensation by reason of the expanded coverage and emergency sick leave.
- This will likely result in a complete, dollar for dollar, recovery of costs for compensating employees in compliance with the FFCRA
- The tax credit is up to 100% of the compensation paid to employees pursuant either to the Emergency COVID Leave or Expanded FMLA Coverage sections of the FFCRA.
- "CARES Act" - Coronavirus Aid, Relief, and Economic Security Act
- The Keeping American Worker’s Paid and Employed Act Section provides small businesses low interest loans for the purposes of keeping their workers employed.
- The loans are aimed at deferring and covering payroll costs for small businesses
- included costs are:
- salary, wage, commission, or similar compensation;
- payment of cash tip or equivalent
- payment for vacation, parental, family, medical, or sick leave
- Allowance for dismissal or separation;
- payment required for the provisions of group health care benefits, including insurance premiums
- payment of any retirement benefit; or
- payment of State or local tax assessed on the compensation of employees;
- and the sum of payments of any compensation to or income of a sole proprietor or independent contractor that is a wage, commission, income, net earnings from self-employment
- This loan is entirely, 100% forgivable provided it is used for the above reasons only and that employee pay and employment levels are maintained.
- The limit for coverage for any individual employee or self-employed proprietor is $100,000 in salary.
- The United States Small Business Administration also has Economic Injury Disaster Business Loans, which may afford relief to many small businesses during COVID-19.
PROTECTING THE WORKPLACE FROM COVID-19
Who gets COVID-19 leave / when can employees be sent home?
- If employees are showing symptoms of being ill, related to COVID-19. (E.g., Fever, Cough) then they can likely be sent home.
- While temperature checks may be permissible, any further required examinations could lead to liability.
- Liability could arise from any attempt to acquire medical information or require medical testing other than that narrowly tailored to inquire into potential COVID outbreaks.
- Asking about Employees' underlying conditions, relevant to COVID-19 or otherwise, could be a violation of the ADA.
- Questions for Employees should likely be limited to inquiring into employee’s showing symptoms specific to COVID, as outlined by the Center for Disease Control ("CDC").
- It is likely permissible to require Employee's to obtain a medical clearance to return to work after a positive COVID-19 diagnosis.
- The CDC has provided a helpful summary of Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19.