Updated: April 1st 2020
Q: Does this Act cover employees who were out prior to the bill passing?
A: No. The FFCRA will cover an employee who takes leave for a qualifying reason once the bill becomes active. The Department of Labor announced on March 24, 2020, that they will begin enforcing the Act on April 01, 2020.
Q: Do you have to do anything differently for furloughed employees vs. terminated employees, for unemployment purposes?
A: Refer to your state’s unemployment information. In California, employees are eligible to apply for unemployment whether their hours are reduced, or they have been laid off. Please encourage them to apply either way. Employees on a reduced schedule are considered partially unemployed and may be eligible for benefits as well. If you have specific questions regarding your state, please contact Big Fish directly.
Q: Will the employer be reimbursed for these additional paid leave requirements by the government?
A: Yes, employers can claim reimbursement via a tax credit against their Social Security tax responsibility. Please work with your CPA or Accountant on this.
Q: Does ordered self-isolation, caring for a family member, or shelter in place count for Emergency FMLA?
A: Yes, as long as the order results in a school closure. Employees will be required to provide certification that their child’s school, daycare, or childcare provider is closed or unavailable.
Q: Does all of this apply to Qualified Non-Profits formed as a 501-C3?
A: We have seen nothing in the Act that would exempt a non-profit of any kind from the provisions under the Act. If you believe you may be exempt, please contact your labor attorney.
Q: Are the two weeks of leave required by the FFCRA need to be added to California’s 40 hours or does this replace California’s mandatory 40 hours of paid sick leave?
A: The Department of Labor has made it clear that any leave entitlements under the FFCRA are in addition to any entitlements for leave under a state or local law or company policy.
Q: Can the 80 hours of Emergency Paid Sick Leave be split up or does it all have to be used at once?
A: It can be split up just like any other paid sick or vacation time. Furthermore, there’s nothing in the Act that prohibits an employee from taking part of their Emergency Paid Sick Leave at one rate and part at another rate, provided they have a qualifying reason that would trigger the use of sick time. For example, an employee may take one week of Emergency Paid Sick Time at 100% of their pay (to a max of $511/day) to seek diagnosis of COVID-19 when they are exhibiting symptoms, and then may take another week of Emergency Paid Sick Time at a later date if they need to care for someone who is in isolation under a doctor’s orders, at a rate of 2/3 their pay (to a max of $200/day).
Q: If I have employees that are home quarantined before April 1st, and I pay them their regular pay for leave taken prior to April 1st, would I be eligible to receive a tax credit for at least 2/3 of their regular pay?
A: No. The Department of Labor has issued guidance indicating that no moneys paid for leave for these purposes is eligible for the tax credit until the effective date of April 01, 2020.
Q: Doesn’t the entire legislation have a 15-day period before it is effective?
A: Yes. The Department of Labor has announced that it will begin enforcing the bill on April 01, 2020.
Q: What date do you list when filing for unemployment, is it 3/20 or after the 10 federal sick days, let’s say 3/30.
A: Unemployment should be filed by employees on the date they become unemployed. If they have wages after that point, the unemployment agency will reduce their wages based on the wages they report as earned for each period of unemployment.
Q: If someone is put into quarantine because a family member shows symptoms of COVID-19, but after testing they do not have the virus, do they still qualify for Emergency Paid Sick Time?
A: If their family member requiring care is under quarantine under a public health official’s orders or because a doctor recommended the isolation, your employee is eligible to receive Emergency Paid Sick Leave, regardless of whether they ultimately tested positive for the virus or not.
Additionally, if an employee has been advised by a health care provider or public health official to stay home due to their relationship with an infected person, the employee is entitled to Emergency Paid Sick Leave
Q: If an employee has already filed for unemployment, how does that affect their 2-week sick pay if it does at all?
A: If an employer provides Emergency Paid Sick Leave pursuant to the requirements of the Act, the unemployment department in their state would adjust their unemployment benefit for that period in which they receive wages. Employees would typically not be able to “double dip.”
However, if an employee is furloughed, an employer is under no obligation to pay Emergency Paid Sick Leave or Emergency FMLA.
Q: How does the calculation work when employees are eligible for both E-FMLA and Emergency Paid Sick Leave? Are they paid for the first 2 weeks of E-PSL then into E-FMLA for Child Care, where the first two weeks are capped at 2K then then the additional 10 weeks are 10K so is it a total of 12k?
A: Yes, that is correct. Employees caring for their children who are displaced from school or childcare due to COVID-19 could first receive up to $2,000 under Emergency Paid Sick Leave, and then for weeks 3-12 receive up to $10,000 under the paid provisions of E-FMLA. This would total up to $12,000 in payments to that employee.
Q: Will Big Fish be providing the necessary posters?
A: Yes. Our website has a downloadable PDF poster issued by the DOL, which must be posted for employees by April 01, 2020. Find the poster here.
Q: Is there a 10-day unpaid period before Emergency Paid Sick Leave?
A: No. Emergency Paid Sick Leave is available to employees upon hire and does not need to be accrued (it uses a “front-loading” method, whereby all leave is available at once).
Q: How about companies filing under a PEO?
A: Please contact your PEO or a labor attorney for further guidance. PEOs are not addressed in the Act.
Q: We are a nonprofit and don’t pay taxes. What kind of “refund” would be available to us?
A: We currently do not believe a refund would be available to you. We will be watching for further information on this topic.
Q: Does notification or paid notification need to be provided to employees before layoff or furlough, and if so, how many days’ notice must they receive?
A: This would be subject to the federal WARN Act and/or applicable state Mini-WARN Act, but is not addressed in this Act.
Q: How will the payments be tracked in iSolved? New pay codes maybe?
A: Yes, have provided guidance for this pay code tracking as released by iSolved, you can locate that information via our recorded webinar. During this webinar we discuss FFCRA and integration with payroll software. Your relationship manager will also be able to assist with these questions.
Q: If we furlough our employees, are they able to use their company provided paid sick leave and their vacation time? Or just vacation time?
A: You may allow employees to use their state-mandated leaves as long as your state laws allow you to; however, employers are not required to provide E-PSL or E-FMLA when employees are on furlough.
Q: Do the leave provisions required by the FFCRA apply to employees hired post-April 1st?
A: Yes, E-FMLA is available to employees with 30 days of service and Emergency Paid Sick Time is available to all employees immediately when the law goes into effect on April 01, 2020, despite their hire date.
Q: To confirm, are employees eligible to receive unemployment when they experience a reduction in work hours? Does the employee just apply through EDD in California?
A: Yes, employees in California are considered “partially unemployed” in the event of a reduction in work hours. Please visit the EDD’s website for more information.
Q: Can employees sign up for both unemployment and for one of these relief programs?
A: Employees will typically not be allowed to double dip. If they are receiving partial wage replacement under one of the new mandated paid sick leaves as required by this Act, they will have their unemployment compensation reduced by the unemployment department to account for any paid leave provided by the employer.
Q: Do we know if the employer’s unemployment rate will still increase due to the additional claims being made?
A: As of right now, there are no requirements for the state to relieve the tax burden for employers experiencing a spike in unemployment. We are hopeful that the Emergency Unemployment provisions will encourage states to place a hold on these tax increases; however, we don’t have more information at this time, as each state will need to make changes separately.
Q: What if the employee only needs to take a day off here and there for childcare? Can an employee take intermittent leave or must they take the entire leave period at once?
A: The Department of Labor has said that employers may provide E-FMLA or E-PSL intermittently but only for employees who need to take time off to care for their child whose school, daycare, or childcare provider is closed or unavailable for reasons related to COVID-19. Employees taking leave for any other reason under the E-PSL provisions must take leave in full-day increments.
Q: Do I have to pay out sick leave prior to furloughing employees?
A: If an employee is on E-PSL at the time you place them on furlough, they will be entitled to E-PSL for each day up to the first day of furlough. Beginning on the first day of furlough, the employee is no longer entitled to E-PSL.
Q: Do employees have the ability to use both acts at the same time? So it would be the Emergency Paid Sick Leave first and then use of the E-FMLA?
A: Yes, the employee may use Emergency Paid Sick Time to shore up the unpaid portion of E-FMLA if they wish, meaning these two leaves may be used concurrently if the qualifying reason for leave overlaps, and if the employee elects to use their Emergency Paid Sick Time to cover the unpaid two weeks at the beginning of E-FMLA.
Q: If employees are on a leave of absence, how does that work with these new leave requirements?
A: Employees on leave for reasons unrelated to COVID-19 are ineligible for E-PSL or E-FMLA.
Q: How do we account for hours for commission-only employees?
A: As of now, the only guidance we have from the Department of Labor is as follows:
For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave. If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.
If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.
You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
Q: How will the Emergency Paid Sick Leave hours and E-FMLA hours be tracked in iSolved since they have to be separated from our regular sick hours?
A: You will be able to set up a new and separate sick policy in iSolved, we have provided guidance for this tracking as released by iSolved, you can locate that information via our recorded webinar. During this webinar we discuss FFCRA and integration with payroll software. Your relationship manager will also be able to assist with these questions.
Q: Is Paid Family Leave paid through the employer or applied through a government program?
A: Employees wishing to take advantage of California’s PFL program should view more on the CAL.GOV website. Paid Family Leave is a state-run program.
Q: If employees meet multiple qualifications for Emergency Paid Sick Leave, can they get more than 80 hours? Can they qualify more than once?
A: No. The total an employer must provide (and can receive credits for) is up to 80 hours or two weeks per employee. The Department of Labor has confirmed this.
Q: What about the self-employed such as in-house subcontractors?
A: They should refer to their attorneys for assistance; however, a similar credit is available for self-employed individuals.
Q: How do I gain an exemption from Paid Sick Leave requirements if I have fewer than 50 employees?
A: A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
- Employer has fewer than 50 employees.
- Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
- An authorized officer of the business has determined that at least one of the following three conditions is satisfied:
1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
To take this exemption, an authorized officer of the business should note the reason for the exemption and maintain it with the request for leave. No materials should be sent to the Department of Labor.
More guidance has been provided by the Department of Labor at www.dol.gov/agencies/whd/pandemic/ffcra-questions.