Ten things employers need to know about administering FFCRA leave

By Andrea LaPlant, PHR, SHRM-CP, HR Services Manager at Trüpp

Implementation of the FFCRA has caused a great deal of confusion for employers and has consequently undergone some clarifications. Our compliance team has compiled a list of the most common misconceptions and lessons learned over the past few months about how to properly administer the FFCRA.

1. An employer cannot require an employee to self-isolate/quarantine and pay that employee under the FFCRA.

Eligibility for compensation under the FFCRA for self-isolation/quarantine only applies if it is advised by a healthcare provider or required by a federal, state, or local order.

2. Employees are immediately eligible for Emergency Paid Sick Leave since there is no length of employment required.

However, Emergency Family Medical Leave requires that the employee be employed for 30 calendar days prior to taking leave to be eligible.

3. An employee does not need to provide proof of seeking a health care provider’s diagnosis or provide test results to be eligible for FFCRA leave.

The employee only needs to provide the name of their health care provider. Under CDC guidelines, employers should not request COVID-19-related documentation from health care providers. This guideline has been put in place to prevent the healthcare system from being overwhelmed.

4. Employees must have special circumstances to justify staying home with a child between the ages of 14 and 18.

While the law allows parents to stay home with children under the age of 18, IRS/DOL guidelines require the employee to certify special circumstances if the child is over the age of 14. However, at the time of this writing, the IRS has not defined what special circumstances qualify and does not require employees to disclose what special circumstances exist.

5. Unless the employee is teleworking, employees must take paid sick leave in full-day increments.

Emergency paid sick leave must be taken each day until the leave is exhausted or the employee no longer has a qualifying reason for taking the paid sick leave.

6. Employees using FFCRA paid leave to care for a child whose school or place of care is closed can take the leave intermittently with employer approval.

The Department of Labor encourages employers and employees to collaborate to achieve maximum flexibility.

7. To calculate the “regular rate of pay” employers should take the average rate over a period of up to 6 months prior to the date on which leave is taken.

In addition, they should incorporate commissions, tips, and piece rates, but it cannot include overtime wages.

8. FFCRA leave wages are subject to withholdings.

Qualified leave wages are subject to withholding of federal income tax, garnishments, and the employee’s share of social security and Medicare taxes.

9. Tax credits are available, up to the daily allowable limit, for qualified health plan expenses.

This includes both employer-paid and employee-paid pre-tax premiums. It can include employer contributions to HRAs and Health FSAs but does not include employer contributions to HSAs. An employer may use any reasonable method to determine and allocate the plan expenses, including any of the following:

  1. The COBRA applicable premium for the employee typically available from the insurer or administrator
  2. One average premium rate for all employees sponsored by a fully-insured group health plan
  3. A substantially similar method that takes into account the average premium rate determined separately for employees with self-only and other than self-only coverage

10. To be eligible for the tax credits, the IRS requires employers to substantiate eligibility for sick leave or family leave credits, which must include a written request.

This written request for such leave must come from the employee and provide:

  • The employee’s name
  • The date or dates for which leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason
  • A statement that the employee is unable to work, including by means of telework, for such reason

In the case of a leave request based on a quarantine order or self-quarantine advice, the employee’s statement should include:

  • The name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine
  • The person’s name and relation to the employee if the person subject to quarantine or advised to self-quarantine is not the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the employee’s statement should include:

  • The name and age of the child (or children) to be cared for
  • The name of the school that has closed or place of care that is unavailable
  • A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave
  • A statement that special circumstances exist requiring the employee to provide care during daylight hours for a child older than fourteen.
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