August 27, 2020
The Families First Coronavirus Response Act (“FFCRA”) requires employers with fewer than 500 employees to provide eligible employees up to 80 hours of emergency job-protected, paid sick leave at 100% of the employee’s regular wages (up to certain caps) if an employee is unable to work because the employee: (1) has been ordered to quarantine or isolate based on either Federal, State, or Local orders related to COVID-19; (2) has been advised by a health care provider to quarantine related to COVID-19; or (3) is experiencing COVID-19 symptoms AND is seeking a medical diagnosis (if the employee is NOT seeking a diagnosis, the time off does not qualify under the FFCRA). You may find more detailed information on the FFCRA requirements:
https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.
The FFCRA also provides up to 80 hours of emergency paid sick leave at 2/3rds of the employee’s regular wages (up to certain caps) if the employee: (4) is caring for an individual who has been ordered to quarantine or isolate based on either Federal, State or Local orders or a health care provider recommendation, related to COVID-19; or (5) 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.
Eligible employees may also receive up to ten additional weeks of emergency, job protected, paid family leave (for a total of 12 weeks) at 2/3rds of the employee’s regular wages if the employee remains unable to work due to unavailability of childcare due to school or childcare provider closure due to COVID-19 or COVID-19 precautions.
Now that schools are “open,” but instruction is being offered online only (instead of in a classroom), are schools considered “closed” for the purposes of the FFCRA? The US Department of Labor says YES, “if the physical location where your child received instruction or care is now closed.”
Conversely, this guidance can be interpreted to mean that when schools open for on-campus instruction, if there is an option for the child to attend school in person or continue online instruction and the family chooses to continue online learning, the employee would NOT be eligible for FFCRA benefits since the child’s school is no longer closed. Of course, there are always exceptions, as in the case where the child continues with online learning due to an underlying health condition that places the child at higher risk for COVID-19.
One question that remains unanswered is whether the FFCRA applies if the “child” who is at home does NOT normally require “childcare” when school is NOT in session, but who requires adult supervision and monitoring when mandatory online school is in session. In these cases, employers must choose which risk to take: whether to provide, or not provide, FFCRA job-protected, paid emergency leave. In our opinion, the greater risk lies with NOT providing FFCRA job-protected, paid emergency leave.
Employers who provide FFCRA paid leave for any of the qualifying reasons are entitled to 100% reimbursement of the FFCRA wage payments through federal tax credits and/or reimbursement. For tax reimbursement purposes, and other reasons, employers are advised to require that every employee who seeks FFCRA leave based on the unavailability of childcare, due to school or childcare provider closure because of COVID or COVID precautions, provide and attest to the following information:
- Name and age of the child;
- The name of the school that has been closed or place of care that is unavailable;
- A representation that no other person will be providing care for the child during the time periods the employee is receiving extended FMLA benefits and, if appropriate, the employee is unable to work remotely while providing child care or supervision.
- Employers are also advised to consult with their payroll service and determine how to code these FFCRA wage payments to ensure that the appropriate reimbursement is sought.
Unless further legislative action is taken, the FFCRA is set to expire on December 31, 2020.
