FFCRA: Everything you need to know when you re-open

2020 has been difficult for everyone, particularly the healthcare and business communities. Many employers have had to shut down or drastically reduce their services during the COVID-19 pandemic. Perhaps you were one of them. Re-opening your business is a welcome task but can be a little tricky. You want to protect your clients and employees while still resuming operations as quickly as possible.

One issue you will face is employee sick leave. COVID-19 may affect their work attendance for some time, including through the summer and into the fall. The FFCRA, or Families First Coronavirus Response Act, regulates how covered employers treat employee sick leave during this health crisis. The act is quite specific and gives detailed instructions on how you are to proceed. While you may find some regulations cumbersome, the FFCRA actually helps you establish and carry out a fair and orderly leave process with only a few bureaucratic headaches.

FFCRA Covered Employers

Some public employers and private employers with fewer than 500 employees fall under the FFCRA provisions. According to the Department of Labor, federal employees covered by Title II of the Family and Medical Leave Act are not affected by FFCRA when it comes to the expanded family and medical leave aspects of the act. They are, however, affected by the paid sick leave provision.

Small business owners, those with fewer than 50 employees, can sometimes be exempted from providing paid leave due to school closings or child care difficulties if they can show that these requirements would "jeopardize the viability of the business as a going concern." To elect the small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

In truth, some small businesses, including dental, optometry, and small medical practices, won't be able to survive if they have to provide extra paid leave. Obviously, these are difficult issues for both employers and employees to navigate. The Secretary of Labor has the authority to exempt small business from these new provisions, but, at this point, no further information has been released about this process.

Paid Leave Provisions

According to FFCRA, covered employers must provide paid sick, family, and medical leave under certain conditions. These conditions include the following:

FFCRA Paid Sick Leave

Covered employers must offer two weeks (up to 80 hours) of paid sick leave when any of your employees cannot work due to being quarantined and/or having COVID-19 symptoms and they are seeking a diagnosis. The quarantine must be due to the recommendation of a healthcare provider or fall under federal, state or local government orders. Also, your employee must receive their regular pay during this period.

You must also offer two weeks (up to 80 hours) of paid sick leave at two-thirds of the employee's regular pay if they cannot work because they must care for someone who is under legitimate quarantine orders. You must also offer this benefit if an employee has to care for a child under age 18 whose school or childcare provider is closed due to the coronavirus crisis. Your employees who are experiencing "substantially similar conditions" as the above must also receive the benefit. Unfortunately, these qualifying conditions have yet to be specified by the Secretary of Health and Human Services, so you may need guidance from an HR expert or attorney if an unusual situation arises.

For employees who have been employed for a minimum of 30 days, you must provide up to an additional 10 weeks of expanded family and medical leave paid at the two-thirds rate. This provision benefits those employees who cannot work because they must care for a child whose school or child care is unavailable due to COVID-19.

In total, a full-time employee can qualify for up to 12 weeks of paid leave. A part-time employee is entitled to leave that equals their usual scheduled hours over that period.

Qualified Reasons for FFCRA Leave

The DOL has clarified the valid reasons for FFCRA leave. An employee qualifies for paid sick leave if they are unable to work or telecommute due to the following reasons:

  • The employee has been quarantined due to federal, state or local requirements.
  • A qualified healthcare worker has advised the employee to self-quarantine.
  • The employee is exhibiting COVID-19 symptoms and is in the diagnostic process.
  • The employee must care for a child whose school or daycare provider is unavailable due to COVID-19.

The list includes other "substantially-similar" conditions, but again, these conditions have not been defined, so you and your employees may find this provision particularly unhelpful.

Tax Credits

The good news is that you shouldn't have to foot the bill for FFCRA. Covered employers are eligible for "tax credits for all qualifying wages paid under the FFCRA." You will also receive tax credits for the money spent to maintain your employee's health insurance coverage during their leave. The DOL suggests that you visit the Department of Treasury's website for more information on this aspect of FFCRA.

Employer Responsibilities

The DOL requires that you post FFCRA requirements in "a conspicuous" place. They also warn that you may not fire, discipline or discriminate against any employee who takes advantage of the FFCRA. The penalties for not following FFCRA fall under the Fair Labor Standards Act.

Here are three FFCRA items you must be aware of, and have, as an employer:

  1. FFCRA Poster - keep in mind you need to send this to all employees, even if they are not currently working or are working from home. This can be sent electronically if you are not in the practice. As mentioned above, it needs to be posted in a conspicuous place within the practice as well so all employees have access to it.
  2. FFCRA Request Forms - one for emergency sick leave and one for expanded family leave. These are really important because without the specific documentation that the IRS requires, you aren't eligible for the reimbursement/tax credits for FFCRA pay. We have a request form for both of these! 
  3. FFCRA Handbook Policies - again one for emergency sick leave and one for expanded family leave. This is highly advised because they help show that you are following the regulations and ensuring your employees are informed.
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HR for Health

Re-opening is a happy event but may be complicated. Keeping up with the FFCRA only makes it more so. Fortunately, HR for Health stands ready to help with information and specialized tools. Our experienced team has created two detailed templates to help you manage FFCRA requests: one for emergency sick leave and one for expanded family leave.

HR for Health is a powerful resource for professional healthcare providers, including doctors, surgeons, physical therapists, veterinarians, etc. Our team has carefully researched all aspects of the COVID-19 crisis, so we are ready to answer your questions. Our website also offers helpful information to all employers, no matter your industry.

For questions about FFCRA provisions or other HR issues, schedule a call or fill out our simple online form. You will receive a response in 24 hours or less.

 

 

Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services.