Guidance Updates on the Families First Coronavirus Response Act
Update (1/19/2021): The Families First Coronavirus Response Act (FFCRA) was effective April 1, 2020 through December 31, 2020. Under the FFCRA, employers were eligible to take a payroll tax credit on 100% of wages paid for leave provided under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
Now, under the recently enacted Consolidated Appropriations Act, 2021, these credits are extended through March 31, 2021 for leave taken under the FFCRA framework, although the FFCRA expired on December 31, 2020. The mandate requiring covered employers to provide the leave is no longer in effect, but if a covered employer decides to voluntarily continue providing the leave under the FFCRA framework, they could be eligible for the tax credits.
How is the fewer than 500-employee threshold determined?
All private employers with fewer than 500 employees are covered under the FFCRA. Employers should count the following employees when determining coverage:
- Full-time employees
- Part-time employees
- Employees on leave
- Temporary employees who are jointly employed under the Fair Labor Standards Act (FLSA) by the employer and another employer
- All employees of integrated employers
- Day laborers supplied by a temporary placement agency
Note: Individuals who are independent contractors under the Fair Labor Standards Act do not count toward the employee threshold.
Calculation of maximum hours
The U.S. DOL included the following guidance in its Temporary Final Rule.
- Full-time employees: Employees are deemed full-time and entitled to up to 80 hours of leave under the EPSLA if they are normally scheduled to work at least 40 hours each workweek. The temporary final rule provides additional guidance for the calculation of maximum EPSL for employees who do not have a traditional weekly schedule but may also be considered full-time.
- Part-time employees: Employees are deemed part-time if they are normally scheduled to work less than 40 hours per week. Part-time employees are entitled to EPSL in an amount up to the number of hours that such employee works, on average, over a 2-week period. The temporary final rule provides additional guidance for the calculation of maximum EPSL for part-time employees whose schedule varies.
Under the EFMLA, calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.
Emergency Paid Sick Leave Act
Funding paid sick leave wages prior to receiving the tax credit
The IRS specifies that covered employers who pay qualifying emergency sick leave wages under the FFCRA will be able to retain an amount of their payroll taxes owed equal to the amount of qualifying sick leave that they paid, and not have to deposit those payroll taxes with the IRS.
Payroll taxes available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes.
There was a 30-day non-enforcement period, referred to as “good-faith compliance efforts.” Employers can take advantage immediately of the paid leave credits and retain the funds normally paid to the IRS. However, if those funds are not sufficient to cover the paid leave tax credits, IRS Form 7200 can be used by employers to apply for an advance payment of any excess credit.
Employees are eligible for EPSL hours immediately upon starting employment.
6 qualifying reasons employees may take this leave
An employee qualifies for EPSL leave if unable to work (including unable to telework) related to COVID-19 because the employee:
- Is subject to a federal, state, or local quarantine or isolation order
- Has been advised by a health care provider to self-quarantine
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis
- Is caring for an individual subject to an order (described in 1) or self-quarantine (described in 2)
- Is caring for his or her child whose school or place of care is closed (or childcare provider is unavailable)
- Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services
Part-time employees would generally be eligible for Emergency Paid Sick Leave in an amount equivalent to their regularly schedule hours for a two-week period.
Wage calculations for paid sick leave
Employees are to be paid based on:
- For reasons Nos. 1 to 3 above, the higher of the employee's regular rate of pay, or the applicable state or federal minimum wage, up to $511 per day
- For reasons Nos. 4 to 6 above, the higher of 2/3rds of the employee's regular rate of pay, or the applicable state or federal minimum wage, up to $200 per day
Emergency Family and Medical Leave Expansion Act
The temporary final rule clarifies that employees who are laid off after March 1, 2020, but subsequently rehired before Dec. 31, 2020 are also eligible for EFML immediately upon rehire if they were on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off.
All covered employers are required to post the DOL’s model notice in a conspicuous place. There are other ways employers can satisfy the requirement.
- Emailing or direct mailing the notice
- Posting on an internal or external employee information website
While the temporary final rule does not require that the posting be in languages other than English, the model notice is also available in Spanish, Chinese (traditional), Chinese (simplified), Korean, Tagalog, Thai, and Vietnamese on the DOL’s COVID-19 and the American Workplace website.
Employee Notice to Employer
Employees may provide oral or written notice of their need for leave under the FFCRA. The notice must provide the employer with enough information to inform the employer of the need for FFCRA leave.
Employers can ask for written documentation of an employee if the original oral or written notice from an employee did not provide enough information. Employers can ask for:
- Requested dates of leave
- Qualifying reasons for leave
- A statement that employee is unable to work because of a qualifying reason
If an employee fails to provide proper notice, an employer must provide the employee a notice of failure as well as an opportunity to furnish the required information/documentation prior to denying the leave request.
Note: If the request for leave is for FMLA leave – as opposed to EFML – the normal FMLA certification requirements remain in effect.
EPSL and EFML can be taken intermittently if both the employer and employee agree. An employee using intermittent leave may report to the employer’s worksite if the leave taken is to care for the employee's child whose school or place of care is closed, or childcare provider is unavailable.
To mitigate the spread of COVID-19, employees may not report to work at their employer’s worksites when using intermittent leave for other qualified leave reasons, but may be able to telework.
Small employer exemption under FFCRA
The U.S. DOL guidance indicates a small business with fewer than 50 employees may claim exemption from providing leave under the EPSL and EFMLEA. A small business may be able to claim an exemption if providing an employee such leave would jeopardize the viability of the business as a going concern.
- This is not an automatic exemption. Employers seeking this exemption should proceed with caution and consider seeking guidance from a human resource professional and/or legal counsel. The guidance further suggests that determination for an exemption must be documented at the time of each leave request.
Employers must retain documents and information regarding FFCRA leave for a period of four years, regardless of whether the decision was made to grant or deny the request for leave.
For tax credit purposes, the U.S. DOL requires employers to maintain the following for four years:
- Documentation to show how the employer determined how much paid leave the employee was eligible for (e.g. records of work performed, telework, and paid leave credits)
- Documentation to show how the employer determined the amount of qualified health plan expenses that were allocated to wages
- Copies of any completed IRS Forms 7200 and 941 that the employer submitted to the IRS (or provided to a third-party payer to meet an employer’s employment tax obligations).