Editorial · August 14, 2020
FFCRA Paid Leave: What Small Employers Must Provide
FFCRA paid leave means that many workers can now get paid time off for reasons tied to COVID-19. The Families First Coronavirus Response Act (FFCRA) was signed on March 18, 2020, and its leave rules took effect on April 1, 2020. They apply through December 31, 2020. If you run a business with fewer than 500 employees, this is a duty you should understand.
This guide covers who must provide the leave, who can take it, what it pays, how the small-employer exemption works, and what records to keep. It is general information, not legal advice.
Who has to provide FFCRA paid leave
The leave rules cover private employers with fewer than 500 employees. Certain public employers are also covered. Under the Department of Labor (DOL) Q&A, you count full-time and part-time employees in the United States when the leave is to be taken. You count employees who are on leave. You also count temporary workers you share with another employer. Independent contractors do not count.
Employers with 500 or more employees are not covered by these two leave laws. The Act created two kinds of leave: emergency paid sick leave, and expanded family and medical leave.
Who can take the leave
Every employee of a covered employer can take paid sick leave, no matter how long the person has worked there. Expanded family and medical leave is different. The employee must have worked for the employer for at least 30 calendar days.
An employee can take paid sick leave when he or she cannot work, or cannot work from home, because the employee:
- is under a federal, state or local quarantine or isolation order related to COVID-19;
- has been told by a health care provider to self-quarantine;
- has COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for someone who is under a quarantine order or self-quarantining;
- is caring for a child whose school or child care is closed or unavailable because of COVID-19; or
- has another similar condition named by the Secretary of Health and Human Services.
Expanded family and medical leave applies only to the child care reason.
How much leave and how much pay
A full-time employee can take up to 80 hours of paid sick leave. A part-time employee can take the number of hours he or she works on average over two weeks. Expanded family and medical leave adds up to 10 more weeks for the child care reason.
Pay depends on the reason for the leave:
- For the employee's own quarantine or symptoms, pay is at the regular rate or the minimum wage, whichever is higher. The cap is $511 per day and $5,110 in total.
- For caring for someone else, or for a similar condition, pay is two-thirds of that rate. The cap is $200 per day and $2,000 in total.
- For child care leave, pay is two-thirds of that rate. The cap is $200 per day. It is $12,000 in total over 12 weeks.
The regular rate is the average of the employee's regular rate over up to six months before the leave. Paid sick time does not carry over to the next year. It is not paid out when a person leaves the job.
The small-employer exemption
The exemption is narrow. An employer with fewer than 50 employees can be exempt only from leave to care for a child whose school or child care is closed. It must also be true that giving the leave would put the business's survival at risk.
The DOL Q&A says an authorized officer of the business must decide that the business qualifies. The owner should write down why. Do not send those papers to the DOL. The exemption does not remove the duty to give paid sick leave for the other reasons.
How employers track it and get paid back
Whether you approve or deny a request, you must keep a record of it. Write down the employee's name, the dates requested, the reason, and the employee's statement that he or she cannot work for that reason. For a quarantine order, note the government body that issued it. For advice from a health care provider, note the provider's name. For child care leave, record the child's name, the school or care provider that closed, and a statement that no other suitable person can care for the child.
Private employers that provide this leave can get the cost back through refundable tax credits. The DOL tells employers to keep good records to support a claim. Check the Internal Revenue Service forms and instructions for the exact steps.
For notice, the DOL says an employee should tell you as soon as practical when leave can be foreseen. After the first workday of paid sick time, you may ask employees to follow reasonable notice steps to keep getting paid.
What to do next
Count your employees, so you know whether the rules cover you. Learn the six sick leave reasons and the child care reason. Set up one simple form that captures the facts above. Ask your payroll provider how to track the hours and the pay caps. If you think you qualify for the small-employer exemption, record the reasons before you rely on it.
FFCRA paid leave runs through the end of 2020, so the records you keep now will matter when you file for the credits. The DOL pages are the best place to check for updates.