Families First Coronavirus Response Act (FFCRA) Employer Compliance Guide

By the Department of Consumer and Business Affairs in partnership with Bet Tzedek Legal Services

Note: This guide does not constitute legal advice, but is instead intended to provide general guidance to assist small businesses in complying with the federal Families First Coronavirus response Act (FFCRA).

Background

• The FFCRA was signed into law on March 18, 2020 and took effect on April 1, 2020. The law originally consisted of three parts: (1) The Emergency Family and Medical Leave Expansion Act (EFMLEA), (2) The Emergency Paid Sick Leave Act (EPSLA), (3) and a payroll tax credit for employers to cover the cost of wages paid.
• Originally, the first two sections of the law were mandatory for most employers with 500 or fewer employees. These two sections expired on December 31, 2020, but the tax credit for employers who comply with FFCRA was extended first to March 30, 2021; and now has been extended to September 30, 2021. As a result, since January 1, 2021, employers are not requiredto provide FFCRA leave; however, covered employers who voluntarily offer such leave may utilize payroll tax credits to cover the cost of benefits paid to employees through the end of September.
• As of the publication of this article, there is no indication whether or not this tax credit will be extended past September 30, 2021.
• The FFCRA is a part of a larger patchwork of federal and state Coronavirus leave laws. A full overview of these other leave obligations exceeds the scope of this guide. Please visit 2021 COVID-19 Supplemental Paid Sick Leave FAQs (ca.gov) for more information on California’s COVID-19 leave law.

Covered Employers

• In its current iteration, the FFCRA allows employers with 500 or fewer employees to receive a tax credit for EFMLEA and EPSLA leave provided to employees.

• Non-profit employers are also eligible to receive a tax credit for EFMLEA and EPLSA leave.

Covered Employees and Amount of Leave

• EPSLA: Eligible employees can receive up to two weeks of paid sick leave (80 hours total) for certain covered reasons related to the Coronavirus outbreak, as discussed further below. Part-time employees can receive a number of hours of paid leave that would equal the hours that such employee works, on average, over a 2-week period.
• As of April 1, 2021, the paid sick leave “clock” has been reset. Employers may provide employees with an additional 80 hours of sick leave, even if the employee had used their allotted 80 hour period of sick leave before March 30, 2021.

Employees are eligible for this leave regardless of how long they have been working for the employer.

• EFMLEA: Eligible employees are able to take up to 12 weeks of EFMLEA leave.
• To be eligible, a covered employee must be employed by the employer for at least 30 calendar days. The eligibility criteria for leave under the FMLA – that employees be employed for at least 12 months and have worked a certain number of hours – do not apply.
• The EFMLEA expands eligibility for family and medical leave provided by the FLMA. The law will not provide employers with an additional payroll tax credit if an employee has previously used the 12 weeks of family and medical leave within the calendar year for reasons in the FMLA not outlined by the EFMLEA.

Reasons for Taking Leave

Employees may take EFMLEA and/or EPSLA leave

1. if an employee is subject to a federal, state, or local quarantine or isolation order related to the Coronavirus;
2. if an employee has been advised by a heath care provider to self-quarantine due to concerns related to the Coronavirus;
3. if (a) an employee is experiencing symptoms of the Coronavirus and seeking a medical diagnosis; (b) the employee is obtaining an immunization related to COVID-19 or recovering from any injury, disability, illness or condition related to such immunization; or (c) the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19, when such employee has been exposed to COVID-19 or the employer has requested such test or diagnosis. (NOTE: Reasons 3(b) and 3(c) only apply to leave taken between 4/1/2021 and 9/30/2021)
4. if an employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to the Coronavirus, or who has been advised by a heath care provider to self-quarantine due to concerns related to the Coronavirus;
5. if the employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or their child care provider is unavailable, due to Coronavirus precautions; and/or
6. if they are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

NOTE: Until April 1, 2021, EFMLEA leave was only available for reason 3(a), above. However, as of April 1, 2021, employees may take EFMLEA leave (and employers may take the tax credit) for any of the six reasons listed above.

Rate of Pay

• EPSLA: The tax credit for paid sick leave is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), as follows:
• If an employee takes time off for reasons 1-3 as listed above, leave is paid at 100 percent of the employee’s regular rate of pay, subject to a cap of $511 per day and $5,110 in the aggregate.
• If an employee takes time off for reasons 4-6 as listed above, the employee must receive no less than 2/3 of the employee’s regular rate of pay, subject to a cap of $200 per day and $2,000 in the aggregate.
• EFMLEA: Leave is paid at 2/3 of employee’s regular rate of pay (as defined under the FLSA) for up to 12 weeks, regardless of the reason for which leave is taken. EFMLEA leave (and the corresponding tax credit) is capped at $200 per day and $12,000 in the aggregate.