RAPID RESPONSE: FFCRA Clarifications and Updates

Apex Benefits and Axiom Human Resource Solutions present “Rapid Response,” a breakdown of legislative and compliance issues affecting Indiana employers and workers. This video is part of a series that addresses the Families First Coronavirus Response Act (FFCRA).

This video outlines clarifications and updates to the FFCRA which as signed into law on March 18, 2020 and is in effect as of April 1, 2020.

Families First (FFCRA) Updates

Section 3605. Paid Leave for Rehired Employees.

• If laid off by on March 1, 2020 or later and then rehired that employee may get access to the emergency paid leave and paid family and medical leave. Employee had to work for at least 30 days before being laid off.

The definition of COVID-19 diagnostic testing that is required to be covered by a group health plan or health insurance issuer without cost-sharing has been expanded.

Payroll tax credit expansion. Under new Rules from DOL, employee Benefits don’t have to be/shall not be calculated in the “rate of pay” for Paid Sick, Medical or Family Leave

TOP FFCRA QUESTIONS

Do I have to pay part-time people the full 80 hours?

• A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Does the 10 days for the Emergency Paid Sick Leave have to occur consecutively?

• Emergency Paid Sick Leave can and EFMLA can only be used intermittently for childcare reason and only then with employer consent (DOL FAQs #20-22)
• If you and your employee agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

Can I use the 10 days for the Emergency Paid Sick Leave to cover the first 10 unpaid days of Emergency FMLA?

• The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency FMLA.

Can you ask for verification on not having child care for Emergency FMLA?

• If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider

Are employer contributions to benefit plans excluded from the regular rate of compensation?

• The DOL Fact Sheet 56A released on Thursday states that employers may exclude from the regular rate contributions irrevocably made by an employer to a trustee or third person as part of a bona fide plan for death, disability, advanced age, retirement, illness, medical expenses, hospitalization, accident, unemployment, legal services, or other events that could cause significant future financial hardship or expense.

Is there a way to get a tax credit prior to paying our employees, so we do not have to be reimbursed?

• Currently no, but you may seek an SBA loan; however, as discussed in the CARES ACT there is a mechanism for quick receipt of funds.

Will this impact the employee’s personal taxes on payroll check?

• In the regular rate of pay calculation, if the health insurance and other pre-tax benefits are not included, there may be an impact; however, the FFCRA was designed to reimburse employers for those employees on Emergency Paid Sick Leave and Emergency FMLA.

NOTE: This presentation/information is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. More information about Families First (March 20, 2020).

View all videos in the CARES Act Rapid Response series.