Families First Paid Sick Leave: A Guide To FFCRA For Employers
If you’re like many employers, understanding all the new rules and regulations that have come about as a result of the pandemic is challenging.
One of the most significant laws passed during the pandemic that likely affects your business is the Families First Coronavirus Response Act, which provides for emergency paid sick leave and expanded PFML for certain workers affected by COVID-19.
At Complete Payroll Solutions, we’re an outsourced HR provider and have been guiding clients on compliance with employment laws like FFCRA for nearly 20 years. For the FFCRA, the stakes can be high, with violations for non-compliance punishable by fines and penalties. One of the questions we’ve been getting a lot lately is how to comply with the FFCRA.
Here, we’ll answer several common topics around FFCRA, including:
- What businesses are exempt from FFCRA
- Who is eligible for FFCRA leave
- How is FFCRA pay calculated
- How to stay compliant with FFCRA
After reading this, you’ll know what steps your business may need to take to follow the new law.
What is the FFCRA?
The FFCRA is a relief package that requires certain employers to provide employees with paid sick leave or expanded family and medical leave for COVID-19-related reasons.
The provisions in the law apply for leave taken between April 1, 2020, and December 31, 2020, and provide that employees are eligible for:
- 2 weeks (up to 80 hours) of paid sick leave at their regular rate of pay if they’re quarantined or experiencing COVID-19 symptoms
- 2 weeks (up to 80 hours) of paid sick leave at two-thirds their regular rate of pay if the employee needs to care for an individual subject to quarantine or whose school or child care provider is closed due to COVID-19, or is experiencing a substantially-similar condition
- Up to 10 additional weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if they’re unable to work because they need to care for a child whose school or child care provider is closed due to COVID-19 and they’ve been employed by you for at least 30 days. The DOL just clarified that this FMLA emergency leave cannot be used if a child’s school is open. However, employees can use it if school is closed or on remote days.
If your business is covered by the FFCRA, you also can’t discharge, discipline or otherwise retaliate against employees who take leave under the act.
Does FFCRA apply to my business?
The FFCRA only applies to certain employers. Generally speaking, the FFCRA covers private – and some public – employers with more than one and less than 500 employees. Since over 99% of businesses in the US have fewer than 500 workers, odds are the law applies to your business.
However, employees of the federal government that are covered by Title II of the FMLA are not covered by the FFCRA.
What businesses are exempt from FFCRA?
If you’re a small business, you may be able to qualify for an exemption. Specifically, if you have less than 50 employees, you may be exempt from the requirement to provide leave due to school or child care provider closings. This is only the case if the leave would jeopardize the viability of your business because:
- The leave would cause expenses and financial obligations to exceed revenues and cause the business to cease operating at a minimal capacity
- Allowing the leave would pose a substantial risk to the financial health or operating capabilities of the business because of their specific knowledge or skills
- There aren’t enough qualified workers available to perform the service provided by the employee and these services are needed for you to operate at a minimal capacity
If you want to elect this small business exemption, an authorized officer should document why your business meets the criteria and save it in case of an audit. More information on claiming the exemption can be found in the DOL’s FAQs on FFCRA.
Who is eligible for FFCRA leave?
If you’re considered a covered employer under the FFCRA, then all your employees are eligible for two weeks (up to 80 hours) of paid leave for COVID-19-related reasons. Employees who have worked for you for at least 30 days are also eligible for up to an additional 10 weeks of paid family leave if they have to take care of a child whose school or child care provider is closed due to COVID-19.
According to the DOL, when leave is foreseeable, employees should provide notice to their employer as soon as is practicable. After the first workday of paid leave, you may require employees to follow reasonable notice procedures to continue receiving sick time.
How is FFCRA pay calculated?
For employees who qualify for paid leave, you’ll calculate their pay based on the reason for the leave. There are three different rates that apply:
Regular Rate of Pay: The employee is entitled to their regular rate of pay (or minimum wage) up to $511 per day and $5,110 in total if they:
- are subject to quarantine or isolation order related to COVID-19
- have been advised by a health care provider to self-quarantine
- are experiencing COVID-19 symptoms and are seeking a medical diagnosis
Two-Thirds Regular Rate of Pay: The employee is entitled to two-thirds their regular rate of pay (or minimum wage) up to $200 per day and $2,000 in total for:
- caring for someone to a quarantine order, self-quarantining or experiencing COVID-19 symptoms and seeking a medical diagnosis
- they’re experiencing a substantially-similar condition
Two-Thirds Regular Rate of Pay: Employees are entitled to two-thirds their regular rate of pay (or minimum wage) up to $200 per day and $12,000 in total if:
- they take leave to care for a child whose school or child care provider is closed
How to Stay Compliant with FFCRA
If you’re a covered employer, there are several steps you’ll need to take in order to be compliant with FFCRA.
- Post a Required Notice: Every covered employer must post a notice of the FFCRA requirements in a clearly visible place on your premises. You can also email or mail the notice or put it on your company website. You can download a free copy of the poster from the DOL site.
- Approve or Deny Leave Requests: Companies should respond to leave requests within the payroll period of the leave.
- Maintain Documentation: Require employees to provide their name, dates for which leave is requested, a statement of the COVID-19-related reason, and a statement that they’re unable to work because of that reason. If they’re requesting leave due to a quarantine order, they should include the name of the physician or governmental entity advising the employee to self-quarantine. Likewise, if they’re requesting a leave because of a school or child care provider closing, they should provide the name and age of the child and school or child care provider. It’s a good idea to develop a template or standard form employees can complete to request leave that asks for this information.
What are the penalties for noncompliance with FFCRA?
Employees who feel that you’re improperly refusing leave requests can call the DOL’s Wage and Hour Division (WHD), who is responsible for administering and enforcing the FFCRA provisions. There are two types of consequences depending on violations:
- If you’re found to have violated the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA, you face the same penalties you would for violations of the FLSA as described in Sections 16 and 17 of the FLSA.
- If you violate the provision for an extra 10 weeks of paid leave, you’re subject to the enforcement provisions of the FMLA.
That means you can be liable for monetary penalties, unpaid wages or liquidated damages, attorneys’ fees, interest, and even an order that prevents you from operating until you stop the unlawful practice. Employees can also file a lawsuit against you.
Minimize the Consequences of FFCRA on Your Business
The FFCRA still leaves many employers with questions. Complete Payroll Solutions is here to help you avoid missteps and their financial consequences. Check out our dedicated COVID-19 resource page for more information on FFCRA rules.