Questions You May Not Have Considered Regarding U.S. Families First Coronavirus Response Act

Moderated by: Clare Vazquez-Peace and Rachel Comella, CertiPay

Am I allowed to ask about an employee’s symptoms or require a doctor’s note? These questions and many more were addressed during the HFTP Hangout that took place on Thursday, April 23, moderated by human resources experts Clare Vazquez-Peace and Rachel Comella of CertiPay. The Hangout began with a comprehensive overview of the U.S. Department of Labor’s Families First Coronavirus Response Act (FFCRA), then migrated into an interesting Q&A session.

An Overview of the Act

There are two parts to the FFCRA package: Emergency Paid Sick Leave and the Emergency Family Leave Medical Act (FLMA) Expansion piece.

Emergency Paid Sick Leave

  • This applies to all employers with under 500 employees at the time of the request. (This is a one-to-one number; if the employee is listed as “active” in your payroll register, they belong in this number.) All employees are eligible no matter how long they are employed.
  • Covers two weeks or up to 80 hours of paid sick leave. This is dependent on the average hours worked in a week.
  • You cannot ask or require employees to use any other Paid Time Off (PTO) first.
  • This leave expires at the end of the year with no cash pay-out and no rollover options.

Covered Leave and Pay

  • The employee cannot work because they have symptoms and are seeking a diagnosis or if they have been diagnosed/tested positive.
    • The quarantined employee would receive full pay capped at $511/day.
  • The employee needs to take the leave in order to care for somebody else.
    • This includes caring for a sick/quarantined person, or caring for a child whose school or daycare has been closed as a result of the pandemic.
    • Daycare could be anyone who has been caring for your children – a neighbor, family member, friend, etc. If the childcare provider is no longer available, then this childcare provision would kick in.
    • The employee would receive 2/3 regular pay capped at $200/day.

Again, this leave covers the first two weeks, up to 80 hours.

Emergency FLMA Expansion Piece

  • This applies to employers with under 500 employees at the time of request. Unlike with the previous sick pay, this leave applies only to individuals who have been employed for at least 30 days.
  • This leave provides up to 12 weeks of paid leave (including the paid sick leave) and job protection, specifically for the childcare provision.
  • This leave expires at the end of the year with no cash pay-out and no rollover options.
  • There is no pay for the first 10 days. Other PTO can be applied, including the Emergency Paid Sick Leave if the employee meets requirements.
  • After 10 days, employers must pay 2/3 of the employee’s regular rate of pay for the number of hours typically worked in the week. It is capped at $200/day and $10,000 total.

How Do Employers Pay for It?

This applies to both the emergency sick leave and emergency FLMA. It is a dollar-for-dollar credit measured against the total amount paid towards Social Security tax and Medicare tax. When you prepare your IRS Form 941 for payroll taxes due quarterly, you would subtract the leave right off and pay the difference. There is a refund possible for wages paid that exceed available credit.

Lay-offs versus Paid Leave: Could You Explain the Difference?

Is the business open and operating with work available for the employee, but the employee is unable to come to work due to COVID-19?

  • The paid sick leave would apply.

Is the business closed due to COVID-19 restrictions but the employee is able to work?

  • These employees would be eligible for unemployment benefits.

What if the business is open and operating, and everyone is working remotely, but an employee is unable to work?

  • If the employee is exhibiting symptoms or has tested positive and cannot work remotely, they would be eligible for paid sick leave.
  • If the employee has children at home who are out of school/daycare and is experiencing difficulty working remotely while caring for them, you can try to work with that employee by setting up intermittent paid family leave. This gives them flexibility to work at least some hours per day, while also giving them time off for childcare.

As an employer: Can I ask about symptoms?

Normally, this would be not acceptable and could be deemed discriminatory. However, things are different during a pandemic. Recommendations from the Center for Disease Control (CDC) and World Health Organization (WHO) have said that it is okay to ask if employees have symptoms in order to determine if they are eligible for paid leave.

Can I take my employees’ temperature to monitor them for fever?

This is not recommended. Chances are that you are not a trained healthcare professional and cannot make an accurate diagnosis of symptoms. This action would open your business up to liability.

Can I send all employees that are over 65 years of age home?

There is no blanket coverage for employees over 65 years of age. The paid leave will not kick in unless an employee has exhibited symptoms or received a positive diagnosis, or if they have been told by a healthcare provider to stay home.

Can I ask for a doctor’s note?

There is no need to inundate doctors for official or formal notes. Document valuable information pertaining to the employee, including symptoms, and then ask the employee to acknowledge the form and sign that it is true and accurate. This is the documentation you will want to keep on file to protect your company when you are collecting tax credits on employees using the emergency leave benefits.

Valuable information to include would be the doctor’s name, date of conversation and instructions.

What can employers do with an employee who simply feels uncomfortable coming into work?

This is a tough subject. As an employer, you need to monitor best practices and ensure that you are providing a safe work environment for your employees. This might include providing personal protective equipment (PPE) and making sure there is enough space for everyone to move about safely while maintaining the recommended social distance of six feet or more. Be sure to approach concerned employees from a fair and neutral position and explain what you are doing as a company to ensure their safety.

Blog post updated on April 27, 2020.

About HFTP Hangouts

Join HFTP for the last round of HFTP Hangouts, taking place Tuesday-Thursday at 2:00 p.m. CT next week.

Briana Gilmore is the HFTP Communications Coordinator. Briana can be reached at Briana.Gilmore@hftp.org or +1 (512) 220-4017.

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