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COVID-19

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Frequently Asked Questions

Paid Leave under the Families First Coronavirus Response Act

What types of businesses are exempt under the FFCRA as a health care provider or emergency responder?

The exemption under the FFCRA incorporates by reference the definition of health care provider found under the Family and Medical Leave Act.  So, for purposes of the FFCRA exclusion, you could consider:

  • Doctors of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices;
  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law;
  • Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law; and
  • Christian Science Practitioners.

The definition does not include nurses, nursing assistants, pharmacists and pharmacy tech along with other direct patient care providers. 

The FFCRA does not define “emergency responder” but that generally includes firefighters, police officers, paramedics and emergency medical technicians.

Does the law take into account the months children would be out of school for summer break?

No.  Expanded family and medical leave is made available to employees when the employee is unable to work to care for a child (under 18 years of age) whose school or childcare provider is closed or unavailable for reasons related to COVID-19.  Routine school closings that are not a result of COVID-19 would not be covered under provisions of the FFCRA.

For employees working variable hours week to week, how are average hours calculated?

The regular rate of pay used to calculate paid leave is the average of the employee’s regular rate of pay over a period of up to six months prior to the date the employee takes leave.  If the employee has worked for less than six months, use the average of the employee’s regular rate of pay for each week the employee has been employed.

Are the tax credits applied to quarterly tax filings or end of the year?

Employers can take immediate advantage of the paid leave tax credits in order to retain and access funds otherwise paid to the IRS in payroll taxes.  If there are not sufficient payroll taxes to cover the cost of qualified sick and childcare leave paid, employers will be able to file a request for an accelerated payment from the IRS.  The IRS expects to process these requests in two weeks or less.  Additional details of the tax credit and the expedited process are expected to be announced the week of March 23rd.  (Note:  Paid leave under the FFCRA is not available to employees until April 1st.)

Does Emergency FMLA cover childcare facilities such as daycares? Are the tax credits applied to quarterly tax filings or end of the year?

Yes.  Under the FFCRA, a child care provider is “a provider who receives compensation for providing child care services on a regular basis.”

If an employee has been told by a doctor to not work due to the compromised immune system of a family member, is the employee eligible for paid leave?

Possibly. Expanded family and medical leave is available to an employee when the employee is unable to work because the employee is quarantined pursuant to advice from a health care provider.  There is no specific guidance as to whether the health care provider’s advice is based on the health of the employee or a family member.  In this situation, it would be reasonable to request confirmation from the health care provider that the employee has been advised to be quarantined.  The FFCRA also provides paid leave for an employee who needs leave to care for an individual who has been quarantined upon advice of a health care provider.  If the individual under quarantine is under 18 years of age, it is reasonable to assume the employee would be eligible for paid leave in order to care for the minor child.

If an employee is isolated or quarantined while being tested for COVID-19, will the employee still qualify for paid leave if the employee tests negative?  Can we withhold payment until we have some form of documentation from the employee?

Yes.  The FFCRA specifically requires up to 80 hours of paid leave to an employee who is unable to work because the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.  The resulting diagnosis does not affect the employee’s eligibility.

While it is reasonable in this situation to request documentation from the employee that medical diagnosis has been sought for suspected COVID-19 symptoms, the DOL has requested that employers be more lax in the enforcement of their attendance policies during the declared pandemic.  This request would include requesting documentation from an overburdened healthcare provider.  Withholding payment could be seen as a violation of the FFCRA provision and therefore would not be recommended.

Does Emergency FMLA pay come of my payroll or does the state pay it similar to unemployment?

Emergency sick leave pay and emergency childcare leave pay come out of your payroll. 

How does the tax credit work?  Is the refund on the entire payroll or just the taxes?

Under normal conditions, an employer pay its employees, the employer is required to withhold from the employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes.  The employer is then required to deposit these federal taxes along with its share of Social Security and Medicare taxes with the IRS and file quarterly payroll tax returns (Form 941) with the IRS.  [Note that as a client of Lyons HR, we take care of the withholding, reporting and depositing of those payroll taxes with the IRS for you.]  Under guidance from the IRS expected to be released the week of March 23rd, eligible employees who are paid qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.  We anticipate this tax credit will be treated as a rebate on your invoice each pay period.  We are currently setting up pay codes to manage this process and will provide further guidance when the process has been more fully defined by the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee’s share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of the qualified sick and childcare leave, you will be able to file a request for an accelerated payment from the IRS.  The IRS expects to process these requests in two weeks or less.  The details of the new, expedited procedure will be announced during the week of March 23rd

If an employee has already taken time off from work due to school closure, is the employee eligible to receive paid leave under the FFCRA?

The FFCRA has an effective date of April 1, 2020. It does not provide paid leave benefits retroactive to that date.

Does an employee have to provide notice that leave is needed.

Yes. If the employee’s need is foreseeable, the employee must provide as much notice as possible

Do I have to continue an employee’s benefits while on leave under the FFCRA?

Yes. The FFCRA is just an extension of FMLA; therefore employers will have to continue benefits just like they are required to do under FMLA prior to the passage of emergency leave under the FFCRA.

Is the amount of paid sick leave based on leave for an employee’s own illness different from leave needed for the employee to care for someone else?

Yes. Paid Sick leave is calculated at the employee’s regular rate of pay for the number of hours the employee usually works, up to a maximum of:

  • $511 per day and $5,110 in the aggregate where the employee is subject to a quarantine order related to COVID-19, has been advised by a health care provider to self-quarantine, or is experiencing symptoms and seeking a medical diagnosis, and;
  • $200 per day and $2,000 in the aggregate where the employee is caring for another subject to a quarantine order, the individual has been advised by a health care provider to self-quarantine, or the individual is experiencing symptoms, or the employee is caring for a son or daughter due to school or loss of child care.

If the employee is off work because the employee is caring for an individual who is subject to a Federal, State or local quarantine or isolation order, is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions, or the employee is 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, then the employees rate of pay would be 2/3 the employee’s regular rate of pay, not 100%.

Workers Compensation and Maintaining a Safe Workplace

If an employee contracts COVID-19 while at work, is the employer liable?

It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.

It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease (again subject to state law variations), an employee must generally show two things:

  • the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
  • the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.

Workers compensation laws vary by state, so consult with your labor and employment attorney for any concerns specific to your business.