UPDATES TO THE FAMILIES FIRST CORONAVIRUS RELIEF ACT (FFCRA)

Additional guidance continues to be provided on the FFCRA which went into effect on April 1, 2020.
 
The Department of Labor (DOL) has published (at last count) 59 FAQ’s available here regarding paid sick and family leave requirements under the FFCRA.  I have found this source to be extremely helpful in interpreting the new laws.
 
Stay-At-Home Orders: The DOL has confirmed that an employee subject to Stay-At-Home, Shelter-InPlace, or other government quarantine order may not take paid sick leave where the employer does not have work for the employee, or if an employee subject to a quarantine or isolation order is able to telework.  Therefore, the employee may not take Emergency Paid Sick Leave, if (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work, such as a power outage preventing the employee from teleworking.
 
The regulations are clear that, while using emergency paid sick leave for any qualifying reason, an employer cannot require an employee to use other paid time off benefits at the same time, such as paid vacation or personal leave. Nor can the employer require an employee to use existing paid time off benefits before Emergency Paid Sick Leave. Other information includes:

• Leave to care for an “individual” only covers immediate family members, people in the household and other similar people.
• Where leave is to care for a child aged 15-18, and provided that work is during daylight hours, employee must provide special justification of their need for leave.
• In order for employers to receive the tax credits and for employees to receive paid leave, the employee must make a written request for paid leave and provide supporting documentation, after first providing oral notice of the need for leave. The written request and supporting documentation must be maintained for four years.  Advance notice is required only when the need for leave is to care for a child due to a school closure or This notice can be provided by an employee’s representative (e.g., spouse, adult family member, or other responsible party).
• A sample “Request for Emergency Paid Sick Leave” form for you to use is available here.

 
Small Business Exemption: The FFCRA provides that businesses with fewer than 50 employees may be exempt from the Act's paid sick and family leave requirements if providing such leave will "jeopardize the viability of the business as a going concern" and an authorized officer determines:
1.  Such leave would cause the employer’s expenses and financial obligations to exceed available revenue and cause the business to cease operating at a minimal capacity;
2.  the absences would—for specified reasons—create a substantial risk to the business’s financial health or operational capabilities; or
3.  the employer would not be able to operate at a minimal capacity because it would have insufficient workers to perform the labor or services provided by the absent employees.
 
For the above reasons, the small employer may deny paid sick leave or expanded family and medical leave to an otherwise eligible employee. Employers using this exemption should retain these records for their own files
 
Tax Credits Procedures: Employers will claim the credits on their quarterly federal payroll tax returns, but they can receive immediate reimbursement in anticipation of the credits by reducing their federal payroll tax deposits by the amount of any qualified sick leave or expanded FMLA leave paid to employees. If insufficient federal payroll taxes are withheld to cover the amount of the credits, an eligible employer may request an advance payment of the credits from the IRS by submitting a Form 7200. The IRS expects to begin processing these requests in April 2020.
 
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