FFCRA: Practical Considerations for Employers...• Employers may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate

FFCRA: Practical

Considerations for

Employers

April | 2020

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Agenda

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Eligibility

Reasons for Leave and Documentation

Interplay with Employer PTO Policies

Regular Rate of Pay Calculations under FFCRA

Job Restoration, Discrimination and Retaliation Issues

How XpertHR Can Help

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Covered Employers

Any private entity or individual who

employs fewer than 500 employees.

Headcount includes:

• All US employees, both full time and part-

time, regardless of how long they have

worked for the employer.

• Employees on leave

• Jointly-employed employees, regardless of

which employer is responsible for payroll

Headcount does NOT include:

• Workers outside the United States

• Independent contractors

• Furloughed and laid off employees

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Eligible Employees

Length of Employment

• For paid sick leave, all employees regardless of length of employment are eligible.

• For expanded paid family leave, employees must be employed for at least 30 days.

Exemptions

• Small business – fewer than 50 employees

• Healthcare providers

• Emergency responders

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Qualifying Reasons for Leave• Quarantine or isolation order (EPSL)

• Recommendation for self-quarantine (EPSL)

• Seeking medical diagnosis after COVID-19 symptoms (EPSL)

• Care for an individual who is quarantining or self-isolating (EPSL)

• Childcare (EPSL and EFMLEA)

• Other “substantially similar condition” (EPSL)

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Documentation and Certification

For all employees requesting EPSL or EFML:

• Employee name

• Date(s) for which leave is requested

• Qualifying reason for the leave

• Oral or written statement that the employee is unable to work or telework because of the

qualified reason

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Documentation and CertificationReason for Leave Employee Must Provide

EPSL related to quarantine or isolationName of the government entity that issued

order

EPSL related to self-quarantine

Name of the healthcare provider who advised

employee to self-quarantine

EPSL to care for an individual subject to

quarantine or isolation order

Name of the government entity that issued the

quarantine or isolation order to which the

individual being cared for is subject or the

name of the healthcare provider

Leave related to childcare

-Name of the child being cared for

-Name of the school, place of care or childcare

provider that has closed or become unavailable

-A representation that no other suitable person

will be caring for the child during the period for

which the employee takes EPSL or expanded

paid FMLA leave

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Interplay with Employer PTO Policies - EPSL

• Employer may not require PTO concurrently.

• Employee may agree to supplement pay available under EPSL with PTO entitlements up to

the employee’s normal earnings.

• Employer may not require employee to exhaust PTO before taking EPSL.

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Interplay with Employer PTO Policies - EFMLA

• Employer may not require PTO to run concurrently with EFMLA during the first two weeks of unpaid leave.

• Employer may require PTO to run concurrently with EFMLA during the next 10 weeks of paid leave but only

if PTO would otherwise be available per the PTO policy (i.e. for school or daycare closures, vacation or

personal leave)

• Employee may elect to have PTO run concurrently with EFMLA for the first two weeks of unpaid and for the

remaining 10 weeks of paid if the employer policy allows PTO under the circumstances.

• If permissible under state and federal law, an employer and employee may agree that PTO may be used

while an employee is on paid EFMLA to supplement the 2/3 pay to allow the employee to receive normal

compensation.

• Employers may not require an employee to exhaust PTO before taking EFMLA.

• Employers may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the

daily and aggregate limits in the EFLMA ($200/day, $10,000 total)

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Employer Obligations for Pay

*An employee who is eligible for both paid sick and family and medical leave may be entitled to

receive a total of $12,000.

Qualifying Reason Employer must pay

Quarantine or isolation orderRegular rate of pay up to $511/day (10 days)- $5,110

total

Recommended to self-isolateRegular rate of pay up to $511/day (10 days)- $5,110

total

Experiencing COVID-19 symptoms and seeking

medical diagnosis

Regular rate of pay up to $511/day (10 days)- $5,110

total

Caring for an individual who is quarantining or self-

isolating

2/3 regular rate of pay up to $200/day (10 days)-

$2,000 total

School or place of care is closed or whose care

provider is unavailable*

2/3 regular rate of pay up to $200/day (10 days)-for

paid sick leave- $2,000 total

2/3 regular rate of pay up to $200/day (10 weeks)-for

paid family and medical leave- $10,000 total

Experiencing any other substantially similar condition2/3 regular rate of pay up to $200/day (10 days)-

$2,000 total

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Calculating Regular Rate of Pay

For fixed hourly or salary, regular rate of pay =hourly wage or the hourly equivalent of salary

For irregular schedules and differing compensation arrangements, employers must:

• Compute the employee’s non-excludable renumeration for each full workweek during the

6-month period,

• Second, compute the number of hours the employee actually worked for each full

workweek during the 6-month period, not counting the hours when the employee took

leave.

• Third, divide the sum of all non-excludable renumeration received over the 6-month period

by the sum of all countable hours worked in the same period.

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Return to Work

• FFCRA does not protect employees from certain adverse employment actions such as

layoffs if such employees would have been laid off even if they had not taken the EPSL or

EFLMA leave.

• “Job restoration” requirements also do not apply to highly compensated “key” employees

under the FMLA or to employers with fewer than 25 employees as long as:

• Employee took leave to care for a child whose school or childcare was closed

• Employee’s position no longer exists due to economic or operating conditions

• Employer made reasonable efforts to restore employee to same or equivalent

position

• Employer made reasonable efforts to contact employee if equivalent position

becomes available for 1 year, starting on date leave concluded or 12 weeks after

leave began, whichever is earlier

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Discrimination and Retaliation

EPSL Remedies

• Aggrieved employees may recover wages that should have been paid to them under the

EPSL provisions and an equal amount as liquidates damages

• If employee brings a private civil action to recover actual and liquidate damages and wins,

then attorneys’ fees and costs of litigation too

• DOL may also pursue relief on behalf of victims

• Willful violation of EPSL provisions can also result in criminal penalties

EFMLEA Remedies

• FMLA prohibitions against interference with the exercise of rights, discrimination and

interference with proceedings or inquiries in the FMLA apply in EFMLEA too

• Employee may only bring private action against employer if the employer is otherwise

subject to the FMLA in the absence of EFMLA expansion

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Action Items

• Post the required notice and otherwise distribute the notice or make it accessible to

employees who work from home;

• Create and distribute policies and documents for implementing the FFCRA;

• Train HR and payroll employees on each provisions’ eligibility and compensation

requirements;

• Ensure managers understand that they may not retaliate or discriminate against employees

who take leave;

• Evaluate the feasibility of allowing employees to telework;

• Evaluate whether to claim the small business exemption; and

• Monitor state and local action on leave laws related to COVID-19.

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How XpertHR Can Help

• Coronavirus (COVID-19): Workplace

Resource Center

• Coronavirus (COVID-19): FAQs

• Coronavirus (COVID-19) Pandemic

Furlough Letter

• Involuntary Terminations

• Process of Termination

• Final Wage Payment Requirements by

State

• Severance Agreement Form

• Health Care Continuation (COBRA):

Federal

• How to Prevent Discrimination in the

Workplace

• COVID-19 Health and Safety

Considerations as Employees Return to

Work

• Preparing for Employees to Work Onsite

After COVID-19

Upcoming Webinars

www.xperthr.com [email protected] XpertHR USA @XpertHR_USA

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