The provisions of the FFCRA related to paid leave went into effect on April 1, 2020, and employees may apply for leave related to qualifying COVID-19 specified criteria anytime between April 1, 2020 to December 31, 2020.

Note: These requirements are not retroactive.

The FFCRA requires health insurers and self-funded plans to cover approved COVID-19 testing without co-pays, advanced authorizations or medical management requirements. It also requires that related services that resulted in or were part of the COVID-19 testing be covered. 

In addition, the FFCRA includes provisions related to paid sick time and expanded FMLA went into effect on April 1, 2020. Employees may apply for paid sick time or leave related to qualifying COVID-19 related criteria anytime between April 1, 2020 to December 31, 2020. The FFCRA has two main components:

Emergency Paid Sick Leave Act

It requires that employers with 500 or more employees, provide qualified employees with up to two weeks (80 hours, or a part-time employee’s two-week equivalent, including any regularly schedule, but still capped at 80 hours total) of paid sick leave. Pay is based on the higher of their regular rate of pay (including tips, commission, etc., but NOT including any OT premiums), or the applicable state or Federal minimum wage, paid at:

1. 100% for qualifying reasons #1-#3 below, up to $511 daily and $5,110 total; and
2. 2/3 for qualifying reasons #4 and #6 below, up to $200 daily and $2,000 total.

Emergency Family and Medical Leave Expansion Act

If an employee is unable to perform his/her remotely, this act provides up to twelve (12) weeks of paid leave \ for employees qualified under #5 below (caring for a child whose school or daycare is closed or regular care provider is not available). Employees will be paid two-thirds (2/3) of their regular pay rate (or 2/3 minimum wage, whichever is greater) for the 12-week period at a maximum of $200 per day or $12,000 for the entire 12-week term.

 

Employers with 500 employees or fewer at the time of COVID-19 requested sick time or leave must provide paid sick time and expanded FMLA to their employees who have been employed at least 30 calendar days prior to the requested leave. Employees may request paid sick time or expanded FMLA for one or more of the following qualifying events:

1. individual is subject to a Federal, state or local quarantine or isolation order related to COVID-19;
2. individual has been advised by a healthcare provider to self-quarantine related to COVID-19;
3. individual is experiencing COVID-19 symptoms and seeking a medical diagnosis.
4. is caring for another individual subject to an order described in #1 or subject to self-quarantine as noted in #2 above;
5. is caring for his/her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Notes: Employers with 50 or fewer employees may apply for some exemptions from the leave requirements if it will result in a significant hardship to their business.

Employers of healthcare providers and/or emergency responders are permitted to exclude those workers from the expanded paid or FMLA requirements.

If an employee can still perform some or all of his/her work remotely, regular pay rates for those telecommuting work hours would be paid and not counted toward paid sick time or leave.

Employees should utilize existing protocols set forth in your Employee Handbook to request paid sick time or leave, but should indicate in their request that they need to take paid sick time or leave due to COVID-19. To ensure you have the appropriate backup documentation for your records, employers should request and employees should provide the following to support their COVID-19 related paid sick time or expanded FMLA request:

• Notice from Federal, State or Local Authority to self-isolate or self-quarantine;
• Email, letter or electronic notice on website, etc. indicating that a school, daycare or child care provider is closed due to COVID-19;
• A doctor's note indicating an employee or household member has tested positive for COVID-19;
• A doctor's note indicating an employee or household member has symptoms of COVID-19 and has sought a medical diagnosis; or
• A notice from an employer or other authority noting that an employee or household member has potentially come into contact with an individual infected with COVID-19.

Note: With an automated solution like CheckmateHCM's Time and Attendance module and Leave Management solution, employees can easily submit these requests for Manager or HR approval along with their backup documentation. Our system has been updated with specific codes related to COVID-19 regulations to aid our clients in accurately tracking hours, payroll and benefit costs for future reimbursement.

A copy of the mandatory FFCRA Employee Rights Poster should be displayed in a conspicuous place at your company office(s) where you typically post your other required Labor Law Posters. You may also email a copy of the poster to all employees to ensure those working remotely can see it.

Employers are eligible to receive an immediate dollar-for-dollar tax offset against payroll taxes due and/or to receive an expedited payroll tax refund for all qualifying costs incurred for employee paid sick time and expanded FMLA related to COVID-19. Health insurance costs covered during employee qualified sick or leave time can be included, but additional pay above what an employee would normally receive cannot be.

Note: Using automated Time and Attendance and Leave Management solutions like CheckmateHCM allows employees to submit PTO or FLMA requests to their Manager and/or HR approval along with backup documentation. Our system has been updated with specific codes related to COVID-19 regulations to aid our clients in accurately tracking hours, payroll and benefit costs for future reimbursement.

Yes, the first employee would not be covered under the FFCRA. For the second employee, for the time off that the employee incurred from April 1, 2020 and beyond, if the employee has other types of accrued time in addition to what's required by the mandate, the employer can decide if they are allowed to use that other time off first, or if they immediately start drawing from their FFCRA bucket. However, you cannot mandate that the employee use other accrued time before emergency paid sick leave. That said, you can mandate that the employee completely drains their emergency paid sick leave bucket before drawing on time from any other buckets. So, the best practice would be to consider all time off related to the situation to be FFCRA paid sick leave (paid at 2/3 the employee's normal rate) until the situation has changed (i.e. the employee no longer needs to stay at home to take care of their kid) or the employee has expired all 80 hours of emergency paid sick leave.

Originally, the legislation for FFCRA was drafted such that it would have been retroactive. However, the final bill that passed had this language removed, so the law is not retroactive. Employers only need to comply with FFCRA for COVID related time off that occurs from April 1, 2020 to December 31, 2020.

Lacking any case studies or other guidance we could refer to, and since the rules indicate that the employee doesn’t actually need to provide a doctor’s note at all (They just need to tell you the medical practice/doctor’s name), you are in a bit of a tight spot on this one. That said, we are still in a 30-day non-enforcement period for FFCRA. So, you could deal with this more rigidly with no real downsides.

For further guidance on documentation requirements for employees who are requesting FFCRA sick leave, please see question 16 on the U.S. DOL’s Families First Coronavirus Response Act: Questions and Answers webpage.

Your obligation under FFCRA is to pay the employee at 100% of their normal rate of pay for up to 80 hours if they have a confirmed COVID-19 diagnosis or are under self-quarantine orders from a medical professional. They don't even need to provide you with a doctor's note, necessarily, but they would need to start by reporting to you that they are under such orders from the doctor. This doesn't sound like it applies to your situation right now.

You should tell your workers that they will need to get doctor's order to self-quarantine in order to get their emergency paid sick leave.