Here are some of the most common questions that I’ve received about the new FFCRA (Families First Coronavirus Recovery Act).

The FFCRA talks about Family Medical Leave Act (FMLA) and expanding it out but I have under 50 employees, does it still apply to me?

Yes. The expansion of the FMLA covered both the reasons for the leave and who it applies to. It applies to ALL businesses with 500 or fewer employees. There is an opportunity for small businesses (including non-profits) to be exempt from the entitlements if “providing the leave entitlements would jeopardize the viability of your business as a going concern”. See below for more details on that. 

How does the new FFCRA leave intersect with the California Paid Sick Leave entitlement?

  • California’s Paid Sick Leave (PSL) entitlement is for 24 hours/3 days of paid leave within an employment year. If employees haven’t used those days, they may use those if they are sick or have a family member who is sick. There is (obviously) no mention of COVID-19 symptoms included in that use. The FFCRA will NOT grant additional time to the PSL.
  • The FFCRA Leave was originally published as 2 separate leave entitlements Emergency Paid Sick Leave (EPSL) and Extended FMLA (EFMLA). But, now that the poster has been issued, those 2 leave entitlements have been combined. There’s some thought that the first 10 days of unpaid leave under the EFMLA will be used by the EPSL. It is unclear whether further clarification will be issued. 
  • The FFCRA Leave can be used for 6 different reasons (although the amount of time, and pay, vary based on the reason). An employee is entitled to take leave related to COVID-19 if the employee is unable to work, including unable to telework, because the employee:
  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis; 
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2) above;
  5. is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

This link has the benefit chart showing different scenarios and what benefits are available to employees in those different scenarios. The column on the left-hand side is “Earned Sick Leave” and includes California Paid Sick Leave (PSL) as well as any other sick leave or PTO that you offer. The FFCRA is effective April 1. Any sick leave that employees use prior to April 1 would ONLY be covered by the PSL. 

If an employee is sick after April 1, their sick leave use would depend on the reason for them being out, but, in general, employees can use their PSL for any reason and then will have the FFCRA sick leave available for reasons 1-3 listed above. 

Keep in mind the FFCRA provides 80 hours for full-time employees and it is calculated on a pro-rata basis for part-time employees.

What if we offer a PTO plan rather than PSL? How does that work?

The Emergency FFCRA leave entitlements are IN ADDITION to whatever the employer was already offering. So if you already offered 80 hours of PTO, your employees would be entitled to 80 additional hours of FFCRA leave IF THEY MEET THE REASONS listed above. 

Employees could use that time right now if they are sick (prior to the April 1 effective date of the FFCRA) or to help cover the 10 day waiting period if they are eligible for the FFCRA Expanded FMLA beginning on April 1.

The PTO you are already providing will not be reimbursed. 

The FFCRA is paid out by the employer and then will be reimbursed on a 100% basis by the federal government in the form of reduction of payroll taxes. The IRS has issued its guidelines of how that will look and this blog post is an excellent explanation of that.

You’ve said that part-time employees are granted their time on a pro-rata basis. But how do I actually calculate that?

Part-time employees are granted a prorated benefit based upon their normally-scheduled hours of work. The “regular rate of pay” is calculated as an average rate paid over the prior six months. For employees with fluctuating compensation, the calculation is based upon total compensation earned over the six-month period divided by the number of hours worked over that period.

I saw that a poster is required. Where can I find that? Should we post it even though we’re going to need to apply for the small business exemption (see below)?

You can download the poster here. There is a list of FAQs here. The current guidance says that ALL covered employers MUST post the poster. Hopefully when the additional instructions about the exemption guidelines are published, the posting requirements will be updated as well.

Help! The FFCRA leave entitlements are paid out by the employer, what if we can’t afford that?

This FAQ has a partial answer for that question. 

One of the questions states: If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

And here’s the answer: To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

That answer was updated recently with this additional caution: You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave. 

So, we currently don’t know what the process will be for small businesses or organizations (under 50 employees) to use the small business exemption. 

In addition, SBA has a page for several different Coronavirus support options. You can access that here.

When the FFCRA was issued, the Treasury Department also stated that there would be some “relief” offered for small businesses but we haven’t heard anything additional about that. 

I’ve also heard that there is immediate dollar-for-dollar offsets for providing this but I personally haven’t seen that come through.

We are an essential critical infrastructure business. What if one of our employees doesn’t want to come to work? 

There are no leave provisions currently available to those workers. It is unknown whether EDD would grant UI in that circumstance. 

We are an essential critical infrastructure business. We have several employees who are requesting hazard pay. What is hazard pay? 

Hazard pay is typically used by businesses to provide additional pay for employees who are performing hazardous duty or work involving physical hardship. The federal DOL additionally defines it as: work duty that causes extreme physical discomfort and distress which is not adequately alleviated by protected devices. 

However, there is NO federal or state requirement to offer or pay hazard pay for any industry or position (unless a bargaining unit contract has been negotiated with it). Hazard pay has been a way for employers to recruit, and keep, employees who are performing high-risk jobs. 

Obviously, right now, there is a push from labor organizations to require employers to institute hazard pay for employees. It is unclear whether that will expand outside of union environments.

We’re in a position where we need to lay off employees. What steps do we need to take?

It seems a bit strange, but California requires “final paychecks” to be issued if you are laying off or furloughing employees and the length of time they will be off is longer than the pay period.

So, if the furlough or layoff is indefinite (or the return date is beyond the current pay period), all earned wages must be paid immediately (including, but not limited to, earned base pay, vacation/PTO, calculable bonuses/commissions, etc.). 

The requirement for the final paycheck is regardless of whether the layoff or furlough is due to the shelter in place order, the drop in customers/clients, or the overall economic impact on a business.    

An indefinite furlough also generally triggers most termination notice requirements.  In particular, with respect to unemployment compensation, it triggers a California employer’s obligation immediately to provide a Notice to Employee as to Change in Relationship, and the brochure For Your Benefit:  California’s Programs for the Unemployed.  COBRA or CalCOBRA notice must also be provided if the furlough is an event that triggers loss of active employee health insurance coverage.  Employers should review their benefits plans to determine what other benefits-related notices may be required. And talk to your insurance broker about handling the termination of coverage paperwork.

You also want to make sure you have up-to-date contact information for your employees so you can alert them when they can return to work.

If you have more than 50 employees and will be laying off or furloughing 50+ of them, there are some additional notice requirements.