April 1, 2020

Employer Action by April 1: Families First Coronavirus Response Act (FFCRA) Notice to Employees

By Simone A. Putnam, Partner-in-Charge, Managed Services - Human Resources

Marcum’s Managed Human Resources practice area supports clients of all industries and sizes with practical human resources guidance and expertise. With the recent flurry of legislative action, we have been communicating with our clients to assist them with navigating the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief & Economic Stimulus Act (CARES Act). We are sharing information below that others might find valuable.

Below is a summary of FFCRA as well as a chart summarizing various scenarios and how they may impact different employee benefits.

Employers should work with their payroll providers to implement pay codes to track leave under FFCRA so that the applicable payroll tax credits can be applied to offset the employer’s FICA contributions and federal income tax deposit requirements. These codes should also be added to timekeeping systems that feed into payroll.

There are also a number of business and individual taxpayer implications under the FFCRA and CARES. We can connect our clients with Marcum’s Tax team professionals to address any questions they may have.

We continue to monitor developments and how FFCRA and CARES may impact the workplace. We are here to help and offer practical guidance on managing employees during these challenging times.

Families First Coronavirus Response Act (FFCRA)

In accordance with the Families First Coronavirus Response Act (FFCRA), employers are required to notify their employees of their rights under the Act’s paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply for leave taken from April 1, 2020, through December 31, 2020. The Department of Labor (DOL) is issuing technical guidance and FAQs for employers, and while the leave benefits are available beginning April 1, 2020, the DOL has designated a “non-enforcement” period for the month of April to assist employers to comply with the new law (employers will not be penalized for non-compliance as long as they act reasonably and with good faith to comply during this period).

We recommend employers email the FFCRA compliance notice to all employees and post it on the company’s intranet, if applicable, on or before April 1. When you return to the office, a printed copy of the notice should also be placed in a conspicuous workplace location, generally where other workplace compliance posters are displayed. Click here to view the notice/poster.

The DOL will likely issue guidance on exemptions for small businesses (less than 50 employees) in the coming weeks, but in the meantime, we recommend all clients make good faith efforts to comply with the law, regardless of size. Employers are encouraged to act with flexibility and compassion with requests for leave to the extent possible, to maintain business operations and financial stability.

Employees are eligible for FFCRA paid sick or expanded family and medical leave when the employee is unable to work (or unable to telework) due to a COVID-19-related situation, if the employee:

Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
Has been advised by a health care provider to self-quarantine related to COVID-19;
Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The chart below identifies COVID-19-related scenarios and coordination of benefits. In some cases, multiple benefits may be available to employees.

COVID-19-related scenarios	FFCRA (note state or local laws may also apply)	Organization Paid-Time Off (sick leave, PTO, etc.)	Short-term Disability (note state or local disability benefits may also apply)	Unemployment Compensation (varies by state, agency makes final determination in all cases)	Workers Compensation
Employee is ill with COVID-19 and subject to medical or government directive	A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period; paid at regular rate of pay capped at $511/day	An employee may elect to use (but cannot be required) any organizational time off pursuant with policy	Generally COVID-19 will qualify as an illness under group STD plans; confirm coverage with carrier or benefits broker/td>	May apply if the employee suffered financial loss due to COVID-19/td>	May apply if exposed at work doing regular duties, and suffers loss of wages/td>
Employee was exposed and quarantined (employer’s business remains open) by a healthcare provider, or is experiencing symptoms and Seeking medical diagnosis	A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period; paid at regular rate of pay capped at $511/day	An employee may elect to use (but cannot be required) any organizational time off pursuant with policy	Generally COVID-19 will qualify as an illness under group STD plans; some plans have financial protections due to a quarantine order; confirm coverage with carrier or benefits broker	May apply if the employee suffered financial loss due to COVID-19	May apply if exposed at work doing regular duties
Employee is caring for a sick family member	A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period; paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day	An employee may elect to use (but cannot be required) any organizational time off pursuant with policy	Not applicable	May apply if the employee can provide supporting medical documentation for ill family member related to COVID-19	Not applicable
Schools are closed by a public official because of COVID-19 and employee has no childcare	A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week (first 2 weeks are unpaid), and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period; paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day	An employee may elect to use (but cannot be required) any organizational time off pursuant with policy; if policy permits, the employee can use leave intermittently with telework as available	Not applicable	Not applicable	Not applicable
Employee is immune-compromised and advised to self-quarantine	A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period; paid at regular rate of pay capped at $511/day	An employee may elect to use (but cannot be required) any organizational time off pursuant with policy	Generally COVID-19 will qualify as an illness under group STD plans; some plans have financial protections due to a quarantine order; confirm coverage with carrier or benefits broker	May apply if the employee suffered financial loss due to COVID-19	Not applicable
Employee is afraid of gathering in a group and refuses to go to work	Not applicable unless allowed in state and/or local laws	An employee may elect to use any organizational time off pursuant with policy	Not applicable	Not applicable	Not applicable
Employer must shut down due to a quarantine by a public official	Not applicable unless allowed in state and/or local laws	An employee may elect to use any organizational time off pursuant with policy	Not applicable	May apply if the employee suffered financial loss due to COVID-19	Not applicable
Employer shuts down due to a business slowdown or lack of demand	Not applicable	An employee may elect to use any organizational time off pursuant with policy	Not applicable	May apply if the employee suffered financial loss due to COVID-19	Not applicable
Employer reduces available hours due to business slowdown or lack of demand	Not applicable	An employee may elect to use any organizational time off pursuant with policy	Not applicable	May apply if the employee suffered financial loss due to COVID-19	Not applicable

The information contained in this chart is for summary purposes based on the information available as of March 30, 2020. It is not intended as legal advice. Clients should consult their legal counsel prior to taking any adverse employment action as a result of COVID-19.