The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from April 1, 2020 through December 31, 2020. Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Click here to download the paid leave poster.

Below are answers to common questions about the FFRCRA. Click here for further details from the U.S. Department of Labor.

Our business was deemed non-essential and we had to close the office. We have employees that cannot work from home. Are they eligible for time off?

Yes, effective April 1 they would most likely be eligible for paid time off under the first qualifying reason to the extent that they are unable to work or telework because they are subject to a quarantine order related to COVID-19.

Are there industry exemptions other than healthcare workers and first responders?

No, but the Secretary of Labor has authority on good cause shown to exempt small businesses (with fewer than 50 employees) from the child care provisions to the extent that viability of the business as an ongoing concern.

If an employee quits or is let go prior to April 1 is the business required to provide these benefits

It may depend on why the employee was let go. An employee who quits is not entitled to the benefit. If, however, they were let go for a qualifying reason (such as in response to a quarantine order in which no telework is available), then to the extent those conditions remain on April 1st, their benefits eligibility would commence and continue thereafter.

Can an employer require documentation for sick leave to qualify?

They may ask for such documentation, but under the present circumstances it is not realistic to expect it in the short term, and health care providers are currently being overwhelmed by more pressing matters. Consequently, paid leave benefits should not be denied on that basis alone.

What withholdings do the tax credits apply to?

The tax credits are against the employer’s share of payroll taxes. Other withholdings such as social security are unaffected.

If an employee has no regular paid time off available do we pay them for the first 10 days of EFMLA leave?

No, but if the employee has no regular leave available they may choose to apply the emergency sick leave to the first 10 days of EFMLA leave, meaning you would either pay them at their full rate or 2/3 rate for those 10 days depending on the category they fall into. You would then pay them at 2/3 rate for the remaining EFMLA time. If the employee chooses not to apply the emergency sick leave time and preserve it then they may go unpaid for the first 10 days.

Must an employee be actually diagnosed with COVID-19 to qualify for emergency sick leave?

No, if they are experiencing symptoms and seeking a medical diagnosis or have been advised by a medical professional to isolate, they still qualify. If they are ultimately confirmed to have something else such as the flu, additional time off after confirmation that their symptoms are not related to COVID-19 would not be covered.

If an employee is over 65 and the Governor has told everyone over 65 to please stay home do they qualify?

Not unless they otherwise satisfy one of the qualifying reasons or have been specifically advised by a heath care provider to self-quarantine due to COVID-19 concerns.

Do these rules apply to exempt salaried employees also?

Yes.

If an employee is currently off of work to take care of a child whose school has closed, do they become eligible for the FMLA pay on April 1?

Yes as long as they are unable to work from home.

If an employee takes emergency paid sick leave for one of qualifying reasons 4 -6 for 5 days but then becomes sick themselves must we change their pay for the remaining 5 days to 100%?

Yes.

If an employee is out now and returns before April 1, are they still eligible for the emergency sick leave?

Not unless they subsequently take leave for a qualifying reason on or after April 1.

Must all of the paid sick days be used consecutively?

No.

Does the emergency paid time-off apply to businesses that do no currently offer benefits?

Yes, the emergency paid leave provisions apply to any employer with 500 or fewer employees regardless of what benefits they currently offer.

What steps can be taken to prevent employees from taking advantage of paid time off if they don’t actually qualify?

The most effective step is to develop a thorough understanding of the parameters surrounding the six qualifying reasons, and to strictly hold employees accountable for establishing eligibility within the bounds of the law – taking into account the practical challenges under the current environment.

If an employee took regular FMLA time within the past 12 months and has returned, are they now eligible for another 12 weeks of EFMLA time as well?

Subject to confirmation from clarifying regulations that have yet to be issued, we believe the intent of EFMLA was to serve as an expansion of existing reasons for FMLA leave – but not of the amount of cumulative FMLA leave that can be taken in any 12-month period. Consequently, Yes, EFMLA leave taken should be counted against an employee’s annualized entitlement, such that they would not be permitted to exhaust their FMLA leave for other reasons, only to take an additional 12 weeks of EFMLA leave.

How do you calculate rate of pay for an employee how works on commission only?

Regardless of whether earnings occur on an hourly, piece-rate, salary or commission basis, the regular rate is computed on the basis of the average rate derived from such earnings for the particular workweek. The formula consists of total compensation in the workweek (except for statutory exclusions) ÷ total hours worked in the workweek = regular rate for the workweek.