10 Sep Families First Coronavirus Response Act and Back To School
It’s back-to-school time in the United States and parents are experiencing a back-to-school environment that looks completely different from ever before in history! As an employer, you may be experiencing a higher level of employees inquiring about how they can handle their home responsibilities as it relates to parenting and e-learning. We wanted to send you some reminders of the Families First Coronavirus Response Act (FFCRA) and how it is being interpreted during this back-to-school season, along with your responsibilities as an employER and the rights of your employEEs.
The FFCRA requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from April 1, 2020 through December 31, 2020.
PAID LEAVE ENTITLEMENTS
Generally, employers covered under the Act must provide employees: Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at:
- 100% for qualifying reasons #1-3 below, up to $511 daily and $5,110 total;
- 2/3 for qualifying reasons #4 and 6 below, up to $200 daily and $2,000 total; and
- Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.
A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons (see below). Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave for reason #5 below.
QUALIFYING REASONS FOR LEAVE RELATED TO COVID-19
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:
- Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- Has been advised by a health care provider to self-quarantine related to COVID-19
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis
- Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2)
- 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
- Is experiencing any other substantially-similar condition specified by the US Dept. of Health and Human Services
KEY LEAVE CONSIDERATIONS FOR EMPLOYERS
The following are key leave considerations for employers as they prepare for the coming weeks:
Does virtual learning count as a school closure?
Many schools have converted to full-time or part-time virtual learning models. As a result, school is still in session, but in-person instruction is either not provided or limited, which has led some to question whether a school is closed for purposes the FFCRA leave. The Department of Labor (DOL) has issued guidance in a series of Frequently Asked Questions (FAQ) that confirm that when the physical location of a school or child care facility is closed, regardless of remote options, employees may be eligible for leave as a result of such closure. Notably, if a school is partially open and an employee’s child attends in-person instruction when available, the employee would not be eligible for leave on in-person instruction days.
Intermittent leave schedules
As a result of hybrid teaching models and other interceding events, employees may seek leave intermittently. The FFCRA regulations and the DOL’s FAQ make it clear that leave can be provided on an intermittent basis with employer approval. Employers should carefully evaluate requests for intermittent leave and consult with counsel before denying a request for intermittent leave related to an employee’s caregiving responsibilities.
Documentation is crucial
Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:
- The name of your employee requesting leave;
- The date(s) for which leave is requested;
- The reason for leave; and
- A statement from the employee that he or she is unable to work because of the reason.
Further, documentation for leave to care for a child must include:
- The name(s) of the child(ren) being cared for
- The name of the school, place of care or childcare provider that closed or became unavailable
- A statement representing that no other suitable person is available to care for the child(ren) during the period of requested leave
To satisfy these requirements, employers should be flexible and creative as to the types of documentation they will accept to substantiate the need for leave. For example, there may be publicly available documentation about school closings and openings that employees can provide, or employees may be able to share letters from their districts that outline student schedules for the fall. Where third-party documents are not available, employers may request that employees submit a written statement that the employee is unable to work due to a school closure.
Payroll Tax Deferrals
We at Reconciled Solutions also wanted to inform you that PresidentTrump issued a memorandum that allows – but does not require (except for federal employees and members of the military) – an employer to defer the withholding and payment of the employee share of Social Security tax (6.2%) on wages paid during the period of September 1, 2020, through December 31, 2020.
Quick background: Payroll taxes generally include Social Security and Medicare, together known as FICA taxes. These payroll taxes apply at a rate of 15.3 percent for wages up to $137,700 for the 2020 calendar year, with the obligation for these taxes equally divided between employers and employees at 7.65 percent (6.2 percent for Social Security and 1.45 percent for Medicare). Although the ultimate tax obligation is shared between employers and employees, employers have the responsibility for withholding the employee’s share from wages and depositing such amounts. The Payroll Tax Deferral affects the first $2,000 of wages per week, per employee, and is only related to the Social Security tax (6.2%) withheld from the employee wages.
Reconciled Solutions advises against taking advantage of it!
Why? Because the bottom line is that those taxes must be paid in April.
It’s true that the employee that participates will see their net paycheck go up by 6.2% from September 1st through December 31st. However, that employee will then have that same amount taken out of their paychecks from January 1, 2021 through April 30, 2021 – in addition to their normal social security tax taken out. There is no overall advantage to the employee. The concern is that employees benefiting from the deferral will not save enough to pay those payroll taxes when they come due, meaning they will have additional payroll taxes withheld during that four-month period in 2021. If the applicable taxes are not fully repaid by April 30, 2021, interest and penalties and additions to tax will accrue to the employee starting on May 1, 2021.
If the employee changes jobs or becomes unemployed, the employee is solely responsible for repaying the IRS for the tax deferred. The employer will not be penalized.