The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020 and goes into effect today, April 1.
The Department of Labor has provided additional guidance on the new law, which we strongly encourage employers to read. We also encourage you to see our COVID-19 guidance and resources on the HR Support Center, which you can find by searching COVID-19.
For certain circumstances related to COVID-19, employees will be eligible for
Effective Date of Law
The FMLA and Paid Sick Leave sections discussed below went into effect on April 1, 2020 and expire December 31, 2020. Leave benefits and payroll credits will not be retroactive.
Key Elements for Employers
Payroll Tax Credit
Emergency FMLA Expansion
Employers with fewer than 500 employees are covered.
Any employee who has been employed for at least 30 calendar days, though employers may be able to exclude employees who are health care providers or emergency responders. See our COVID-19 FAQ on the HR Support Center for details on how the FFCRA defines health care providers and emergency responders.
Covered Leave Purpose: To care for a child under 18 of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency, defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.
Reinstatement to Position after Leave:
The same reinstatement provisions apply as under traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if certain conditions are met:
Emergency Paid Sick Leave
Employers with fewer than 500 employees.
All employees (no matter how long they have been employed), though employers may be able to exclude employees who are health care providers or emergency responders. See our COVID-19 FAQ on the HR Support Center for details on how the FFCRA defines health care providers and emergency responders.
Covered Leave Purposes:
Duration of Leave:
Rate of Pay:
Small Business Exemption
Employers with fewer than 50 employees may be eligible for an exemption from the childcare leave provisions if at least one of the three statements below are true:
Documentation and Additional Guidance
Required FFCRA Poster
The Department of Labor (DOL) has released a mandatory employee rights poster for the FFCRA. It should be posted or distributed to employees electronically (via email or online portal) by April 1. More information on the requirements can be found here.
Enforcement of FFCRA
The DOL will not bring enforcement actions against employers for violations of the FFCRA prior to April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. You can read more about the brief non-enforcement period here.
Documentation Required to Substantiate Leave Payments
(From the IRS) An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:
In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
How to Apply for Tax Credits
The IRS has released DRAFT instructions on how to access and administer payroll tax credits. The draft document is available here. Employers should regularly check back at this link for the final instructions.
Guidance from the DOL on Administering FFCRA Leaves
We strongly suggest that employers read through the entire Questions and Answers document, so they have an understanding of how the leaves work. The following are some highlights from the updated guidance:
Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements are outlined in IRS guidance as discussed above. See Questions 15 and 16.