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HowardSimon Covid-19 Federal Response

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The Families First Coronavirus Response Act (FFCRA)

DOL guidance on FFCRA
DOL Covid-19 and the American Workplace Page
Employer FFCRA Paid Leave Page
Employee: FFCRA Paid Leave Page

****Employer Action Required
The DOL has made available the notice that needs to be distributed to all employees.
FFCRA Employee Rights Notice

The Families First Coronavirus Response Act (H.R. 6201) was signed into law by President Donald Trump.

Press release from the Department of Treasury can be found here.

Employers are eligible for payroll tax credits in connection with providing paid leave under this measure. At this time the mechanics of how this will work have not been disclosed.

National Paid Sick Leave Related to COVID-19

Private-sector employers with fewer than 500 employees, and public-sector employers in general, are required under the Coronavirus Response Act to provide employees, regardless of how long they have worked for their employer, with paid sick leave if any of six situations occur.
  • A federal, state, or local quarantine or isolation order related to COVID-19 has limited the employee's ability to travel
  • A health-care provider advised the employee to self-quarantine because of concerns regarding COVID-19
  • The employee is experiencing symptoms associated with COVID-19 and is in the process of determining whether he or she has contracted the virus
  • The employee is caring for someone who is subject to a governmental quarantine or isolation order for COVID-19 or whose health-care provider advised that person to self-quarantine because of COVID-19
  • The employee needs to care for his or her child because of the closure of the child's school or child-care facility, or the unavailability of a child-care provider, because of COVID-19 considerations
  • The employee is experiencing a situation that was specified by the Department of Health and Human Services as substantially similar to any of the five aforementioned situations.

For the first three situations, the amount of paid sick leave regarding COVID-19 that an employee would need to be paid per hour is the greatest amount among the employee's regular hourly rate of pay as determined under the Fair Labor Standards Act, the federal hourly minimum wage of $7.25, or the applicable hourly minimum wage of the state or locality where the employee is considered to be employed.

For the fourth, fifth, and sixth situations, the employee would be entitled to two-thirds of the amount of paid sick leave to which he or she would have been entitled had the first, second, or third reasons been applicable.

The amount of paid sick leave provided for the first three situations cannot exceed $511 a day and a total of $5,110. The amount of paid sick leave provided for the fourth, fifth, or sixth situations cannot exceed $200 a day and a total of $2,000.

Employees cannot be required by their employer to search for or otherwise provide a replacement employee to cover work hours as a condition of receiving this paid sick leave related to COVID-19.

The period of this paid sick leave can start at any point in 2020, although hours of this leave not used in 2020 cannot be carried over into 2021.

Employers would be required to provide employees with notice of the availability of this leave.The Labor Department is to create a model notice for this leave by the seventh day after the enactment of the measure. Electronic delivery of this notice is anticipated

Employers can require employees who have received at least one day paid sick leave related to COVID-19 to provide the employer with reasonable notice as to their health status as a condition of continuing to be able to use this paid sick leave.

FMLA Expansion, Paid-Leave Components

After 10 days of unpaid leave, a period of paid leave would follow for employees who need to care for children younger than 18 whose school or child-care facility is closed because of the virus or whose child-care provider is unavailable because of the outbreak.

The measure established entitlement to public health emergency leave as a sixth reason among the list of situations that employees must be granted leave by employers upon request, although the other five reasons provide only unpaid leave.

The period of paid public health emergency leave is for up to the remainder of the period of 12 workweeks of leave generally available for employees who qualify under the FMLA.

The amount of paid leave per day generally would need to be at least two-thirds of the employee's regular rate of hourly pay as defined by the Fair Labor Standards Act, multiplied by the number of hours the employee normally would have been scheduled to work. The maximum amount payable per day would be $200 and the total amount payable to an employee for public health emergency leave cannot exceed $10,000.

FMLA requirements generally apply only to employers with at least 50 employees on each workday of at least 20 weeks in the current or previous year, the group of employers required to provide public health emergency leave is to be those with fewer than 500 employees. The Labor Department would be granted authority under the measure to exempt employers with fewer than 50 employees from the requirement to provide employees with public health emergency leave if the employers can show that granting such leave would "jeopardize the viability of the business as a going concern." We are watching this closely and will notify all clients as soon the Labor Department releases information around this.

To be eligible for public health emergency leave, employees generally would need to show that they are unable to sufficiently work in-person or telework because they need to care for their children because of coronavirus-related loss of access to educational or childcare services.

Public health emergency leave is available to all employees who have worked for their employer for at least 30 days, regardless of how many hours of work they performed during their period of employment, and who need to take care of their child at home because of the virus.

Employees would be able to substitute days of accrued vacation leave, personal leave, or medical or sick leave for the initial period of 10 days of unpaid public health emergency leave. Employees would need to provide notice to their employer to take the leave.

Payroll Tax Credits

The employer portion of Social Security tax (but not Medicare) due would be able to be reduced by the amount of paid sick leave related to COVID-19 provided to employees and the amount of paid public health emergency leave provided to employees under the amended FMLA.

If the amount of the credit based on payments of paid sick leave to all employees for a quarter would exceed the amount of the employer's portion of Social Security tax due for the quarter, the employer could have the excess treated as a refundable overpayment.

The credit can be increased by the amount of the employer portion of Medicare tax due on payments of paid sick leave related to COVID-19 and payments regarding paid public health emergency leave.

The amounts of these credits also can be increased by the amount of the employer's qualified health plan expenses for employees receiving this paid sick leave, helping employers maintain health coverage for these employees.

Payments for paid sick leave related to COVID-19 and paid public health emergency leave under the amended FMLA are themselves not subject to the employer portion of Social Security tax.