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COVID-19: New, Updated Guidelines for FFCRA Leave Requirements

COVID-19: New, Updated Guidelines for FFCRA Leave Requirements

Now that the Families First Coronavirus Response Act (FFCRA) has been law for more than a year, a recent COVID-19 stimulus package updated several key provisions to help organizations and employees return to work safely during the pandemic. While no longer mandatory, employers that offer FFCRA leave can still earn tax credits to reimburse their costs. Here's what you need to know.

 

What Initial Changes Were Made to Paid Leave Requirements by the FFCRA?

When the FFCRA became law on March 18, 2020, it enacted several key changes to paid leave requirements. These included: 

  1. Two Weeks of Paid Sick Leave at Regular Rate: Covered employers must provide all employees with two weeks (up to 80 hours) of paid sick leave at their regular rate of pay if the employee is unable to work due to quarantine and/or COVID-19 symptoms.
  2. Two Weeks of Paid Sick Leave at Two-Thirds Rate: Covered employers must provide all employees with two weeks (up to 80 hours) of paid sick leave at two-thirds their regular rate of pay if the employee is unable to work due to a “bona fide need to care for an individual subject to quarantine.” This provision also applies to care for a child (under 18) whose school or childcare provider is unavailable or closed as a result of COVID-19.
  3. Additional 10 Weeks of Paid Expanded Family and Medical Leave: If a worker has been employed for at least 30 days, covered employers must provide 10 weeks of paid expanded family and medical leave at two-thirds their regular rate of pay if the employee cannot work “due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.”

Additionally, SHRM points out that new guidelines provide clarification on the following points: 

  1. Furloughs Don’t Count Against Leave Entitlement: If an employee is furloughed, this time does not count towards their full 12 weeks of permitted FMLA/FFCRA leave.
  2. Return-to-Work Updates: Employees returning to work after caring for a family member exposed to COVID-19 can be required to work a position that limits coworker interaction (or telework). However, the employee must be restored to their same or equivalent position upon return. Negative COVID-19 tests can also be required before returning to work, but SHRM recommends employers follow DOL and EEOC guidance to avoid infringing on rights protected by the ADA.
  3. Retaliation Protection: Employers cannot extend an employee’s furlough if they expect the worker to take FFCRA leave once they’ve been called back to work.

 

What Counts as a Qualified Reason for FFCRA Leave?

The DOL determined that the following scenarios qualify a worker for paid sick leave if they’re unable to work or telework:

  1. The employee is subject to a federal, state, or local COVID-19 quarantine or isolation order. 
  2. The employee has been advised by a healthcare provider to self-quarantine.
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  4. The employee is caring for someone subject to an order described in point 1 or a self-quarantine as described in point 2.
  5. The employee is caring for a child whose school or place of childcare if closed (or provider is unavailable) for reasons related to COVID-19.
  6. The employee 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).

For reasons 1–4 and 6, part-time employees are eligible for the number of hours of leave that they’d average over a two-week period; for reason 5, part-time employees are eligible for leave for the number of hours they’d normally work during that period.

In September 2020, the DOL issued clarifications on several FFCRA rules. These include:

  1. Employees must have work available to them in order to take FFCRA leave
  2. Employees must receive approval from their employer to take FFCRA leave
  3. Employers can exclude employees from FFCRA leave eligibility if they're healthcare providers or emergency responders as defined by the FMLA (with exceptions)
  4. Employees are required to provide appropriate leave documentation as soon as possible
  5. Improved consistency regarding reasonable notice procedures for employees

 

FFCRA Leave Extended and Updated by ARPA in March 2021

Employers should also note that FFCRA leave deadlines were first extended in December 2020 and again in March 2021 with the passage of the American Rescue Plan Act of 2021 (ARPA). Now, employers who voluntarily offer FFCRA leave—which includes Emergency Paid Sick Leave (EPSL) and expanded Family and Medical Leave (EFML)—can claim the refundable tax credit through September 2021

According to law firm Bowditch & Dewey, the extended FFCRA leave also includes new non-discrimination rules, new qualifying reasons for paid leave, a refreshed paid sick leave bank, and a new expanded family and medical leave (EFMLA) expansion.

These take effect on April 1, 2021, and include: 

Updated Non-Discrimination Rules

  • Tax credits won't be made available to employers that discriminate in providing FFCRA benefits in favor of highly paid employees, full-time workers, or employees who have been with the organization longer than others

Updated Qualifying Reasons for Paid Leave

  • If an employee is awaiting COVID-19 test results
  • If an employee is getting a COVID-19 vaccination 
  • If an employee is recovering from a condition or illness that's related to receiving a COVID-19 vaccination

Paid Sick Leave Bank Reset

  • Employees who previously exhausted their FFCRA paid sick leave before April 1, 2021, are eligible for up to 10 days of qualifying paid sick leave beginning April 1, 2021 (employers may still claim tax credits for this leave)

Updated EFML Expansion

  • Employees can take EFML for the same reasons that they can take FFCRA paid leave, including the new qualifying reasons
  • The first 10 days of EFML is no longer required to be unpaid
  • Employers can claim a tax credit for paid expanded qualifying sick leave up to $12,000 each year, per employee—an increase of $2,000 

 

Which Employers are Impacted by the FFCRA's Voluntary Leave Provisions?

According to the DOL, the voluntary leave provisions in the FFCRA apply to certain public employers and private employers with less than 500 employees

Also, note that covered employers qualify for dollar-for-dollar tax credit reimbursement for leave wages paid under the FFCRA. More information can be found at irs.gov. To calculate the rate of pay by the scenarios listed in the previous section, go to dol.gov.

COVID-19 Return to Work Readiness Checklist

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