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Your Top 10 FFCRA Questions Answered

Friday, April 17, 2020
Written By
Erica Storm
Director of Legal Content

Recently, you’ve likely gotten lots of questions from your clients about the Families First Coronavirus Response Act (FFCRA) and how it applies to their business. To help you navigate this monumental piece of legislation, we’ve put together a list of top questions we received during our recent webinar, “FFCRA Update for Employers.”

During this webinar, held on April 10, 2020, I discussed best practices for complying with the leave requirements of the FFCRA. A full recording of the webinar, along with other timely resources, can be found on our COVID-19 Resource Center.

FFRCA Webinar Questions and Answers

Q: Can you clarify if an employer claims to be essential, and work from home isn’t available to an employee, do EPSLA and EFMLEA apply if he or she has COVID-19 or needs to stay home to care for a child or spouse?

An employee is eligible for paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded FMLA leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) if he or she is unable to work for qualifying reasons. If work from home is not available, the employee will be eligible for paid leave if he or she is not able to work at the employee’s worksite due to the need for leave (and any other eligibility requirements are met).

Q: ­Will you elaborate on paid sick leave when an employee is subject to a quarantine or isolation order? What happens if the business is considered essential but still closes due to the state order? Will the employees they sent home for 10 days still get paid sick leave?­

If an employer closes their business or worksite, employees are not eligible for paid leave, effective as of the date of the closure. However, they may be eligible for state unemployment benefits. This is the case whether the employer closes for lack of business or because the employer was required to close pursuant to a federal, state or local directive. If employees had been eligible for paid sick leave prior to the closure, the employer must still pay for paid sick leave used before the business was closed.

Q: ­Many parents can take care of kids and still work remotely. Are they still eligible for the expanded FMLA paid leave?­

Employees are only eligible for paid leave if they are unable to work because they need to care for a child when the child’s school or daycare is closed due to COVID-19. If parents are able to work while caring for a child, or if another suitable individual is able to care for the child, the employee would not be eligible for paid FMLA leave (or paid sick leave).

If an employee is able to work remotely, but cannot work his or her normal schedule or hours because of the need to care for the child, the employee may take paid leave intermittently for the portion of time the employee is unable to work (if the employer agrees).

The U.S. Department of Labor (DOL) encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave of less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the DOL is supportive of such voluntary arrangements.

Q: ­If an employee is exposed to someone who has been diagnosed with COVID-19, do they need a physician’s order to self-quarantine?  What type of documentation is acceptable­?

An employee is eligible for paid sick leave if a health care provider directs or advises the employee to stay home or otherwise self-quarantine because:

  1. The health care provider believes that the employee has or may have COVID-19 or is particularly vulnerable to COVID-19, and
  2. The self-quarantine based upon that advice prevents the employee from working (or teleworking).

An employee may not take paid sick leave under the FFCRA if he or she unilaterally decides to self-quarantine for an illness without medical advice, even if he or she has COVID-19 symptoms.

A written doctor’s note or order is not required to substantiate medical advice to self-quarantine for these reasons. Rather, the employer should document the name of the health care provider who gave the advice to the employee, along with the standard documentation of the employee’s name, the dates for which leave is requested, the reason for leave and a statement from the employee that he or she is unable to work for that reason. 

Q: ­Would an employee qualify for emergency sick time if they sought a medical diagnosis and the COVID test came back negative, but the doctor still informed them to self-isolate until they no longer had a fever? ­

An employee is eligible for paid sick leave if a health care provider directs or advises the employee to self-quarantine because of a belief that the employee has, or may have, COVID-19, or is particularly vulnerable to COVID-19, and the self-quarantine based upon that advice prevents the employee from working (or teleworking). If the test is negative, but the doctor still has a belief that the employee may have COVID-19 or that the employee’s other illness makes him or her particularly vulnerable to COVID-19, the employee would be eligible for emergency paid sick leave.

Q: ­I have groups with over 500 employees. What is available to them? I can’t find anything out there for them. Why?­

It is correct that most of the programs provided by the coronavirus relief bills, including employee leave benefits, are designed to benefit smaller businesses. In passing these bills, Congress prioritized aid to these smaller companies as it determined that they had more of a need for financial assistance. The CARES Act does provide for the U.S. Treasury to establish a loan program that would be available to mid-size companies (those with 500-10,000 employees). That program has not yet been implemented.

Q: ­If an employer with over 500 employees wants to provide these same leaves under the FFCRA for their employees, will they be in compliance?­

It is always up to an employer if they wish to provide more or better benefits than are required by law. Employers are not prohibited from providing benefits, such as paid leave, that are not required. However, larger employers that provide paid leave for these reasons are not eligible for tax credits provided by the FFCRA. Also, state or local laws may require paid sick or family leave, so employers should be sure to follow those requirements.

Employers should use caution when using a law that does not apply to them as the basis for any benefits, including leave programs or policies. An employer who is not subject to the FFCRA with respect to paid leave has more freedom to determine leave parameters, such as eligibility, duration of leave, reasons for leave and amount of pay, in a manner that works for the business. Attempting to follow requirements that do not apply could be problematic for an employer if they are too burdensome.

Q: Can an employer force employees to take PTO when sick with COVID-19?

An employer may require employees to stay home from work when sick with COVID-19. However, if an employee is eligible for paid sick leave under the EPSLA, an employer may not require the employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave required by the EPSLA.

Employers also may not require employees to use such existing leave concurrently with the paid sick leave under the EPSLA. But if the employer and employee agree, the employee may use preexisting leave entitlements to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that the employer is not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA.

Q: ­How should employers with an unlimited PTO program handle the two-week paid leave accommodation?  ­

The paid sick leave provided under the EPSLA is in addition to the employer’s existing PTO policy. If an employee is eligible for paid sick leave under the EPSLA, an employer may not require the employee to use PTO before the paid sick leave required by the EPSLA. Also, employers may not require employees to use PTO concurrently with paid sick leave. But if the employer and employee agree, the employee may use PTO to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that the employer is not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA.

Q: ­ Are the FSA tax credits just for employer contributions to an FSA, or are they for employer and employee contributions?

The amount of qualified health plan expenses may include contributions to an HRA (including an individual coverage HRA), or a health FSA. To allocate contributions to an HRA or a health FSA, employers should use the amount of contributions made on behalf of the particular employee. The amount of qualified health plan expenses that is taken into account in determining the credits generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee with pre-tax salary reduction contributions. However, the qualified health plan expenses should not include amounts that the employee paid for with after-tax contributions.

Want more information?

Visit our COVID-19 Resource Center to access the latest compliance, HR and employee resources. These resources can be downloaded for free and shared internally, with your clients and their employees to help them stay safe and informed. Zywave partners with the HR Hotline can also reach out directly for help with specific questions.

Note: These questions and answers are not intended to be exhaustive nor should this information be construed as legal advice. Readers should contact legal counsel for legal advice. The information contained in this blog post is current as of the date of creation.

 

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