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Temporary Regulations to Implement the FFCRA for Employers


The U.S. Department of Labor (DOL) has published temporary regulations implementing the Families First Coronavirus Response Act (FFCRA).

Details matter – make sure you properly document your employee’s leave eligibility!

HWS has created an easy-to-fill-out form for your employees to use when requesting their leave, which can be found here: Emergency Paid Leave Request Form.

How Does the Household Employee Request Emergency Paid Leave?

Employees must provide a signed statement when requesting paid leave under FFCRA with the following information:

  • The employee’s name
  • The date(s) for which leave is requested;
  • The COVID-19 qualifying reason for leave; and
  • A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave:

  • An employee requesting paid sick leave due to a quarantine or self-isolation order must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. Please Note: Updated DOL Guidance states that Stay-At-Home and Shelter-In-Place orders do qualify as quarantine orders under FFCRA.
  • An employee requesting paid sick leave due to a health care provider’s advice to self-quarantine for COVID-19 related reasons must provide the name of the health care provider who advised of the self-quarantine. If possible, employee should retain written orders for their own records.
  • An employee requesting paid sick leave to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the reason for the request.
  • An employee requesting paid time off due to school-closure under the EFMLEA to care for their child must provide:
    • The name of the child being cared for;
    • The name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and
    • A statement representing that no other suitable person is available to care for the child during the period of requested leave.

Employers must retain all documents related to the leave request for four years, whether or not the leave request was approved.  Oral requests should be written down and documented, and supporting documentation should be added when possible. This applies to emails and text messages as well.  Employers are encouraged to ensure that an approved leave request form is completed at the earliest practical date.

The IRS has yet to issue guidance on how household employers who file and pay employment taxes with Form 1040 Schedule H can claim the tax credit for leave paid to employees under FFCRA. HWS will post here as soon as that information is available.

Paid Sick Leave – Clarification of Qualifying Reasons

# 1: The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19

Eligibility  under reason 1 depends on whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order. Government stay-at-home or shelter-in-place orders  qualify as quarantine or isolation orders according to the US Department of Labor.  However, if a business has closed and the need for care or other work no longer exists, the employee is not eligible for paid sick leave

# 2: The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19

To be eligible under reason 2, a health care provider must believe that:

  • the employee has COVID-19
  • may have COVID-19
  • is particularly vulnerable to COVID-19

Again, the employee must demonstrate that they would be able to work “but for” the health care provider’s guidance to self-quarantine.  Thus, an employee who has no complications from the disease and can telework while self-quarantining is not eligible for paid leave. It is understood that most household employment does not lend itself to telework, but if the employer tells the worker to not report to work rather than a health care provider, FFCRA paid sick leave does not apply because that would mean that the need for the work did not exist.

#3: The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis

Under the Regulations,  the employee is eligible for paid sick leave if they experience the following symptoms and are seeking diagnosis and treatment: Fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC.

The employee must be taking steps to obtain a medical diagnosis, and he/she should document these efforts, which may include Tele-doc records, receipts from drive through testing centers, and other similar evidence of their actions.  It is important to note that an employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis, and they cannot take paid sick leave able to telework while waiting for test results.

An employee who is not eligible for testing (no symptoms/risk factors or only minor discomfort) may be eligible for paid sick leave if advised to self-quarantine as described in reason 2 above.

#4: The employee is caring for an individual who is subject to a quarantine order or has been advised to self-quarantine

Per the Regulations, an employee may be entitled to paid sick leave if they have to care for an immediate family member, roommate, or a similar person who qualifies for reasons 1, 2, or 3 above.

#5:  The employee is caring for their son or daughter if the school or place of care has been closed, or the child care provider is unavailable, due to COVID-19 precautions

An employee is also entitled to paid sick leave to care for his or her child. However, a need to care for the child must truly exist.  Paid leave is not required when another suitable individual— such as a co-parent, guardian, or the usual child care provider—is available to provide the care the child needs.

Calculating Paid Leave

Employees qualifying for sick leave under reasons 1-3 above are entitled to leave covering 100% of their normal hours for two week (up to 80 hours) paid at their regular rate of pay.  Employees qualifying for sick leave under reasons 3-4 are entitles to leave covering 100% of their normal hours (up to 80 hours) paid at 2/3 their regular rate of pay.

Employees who have been employed for at least 30 days are entitled to up an additional 10 weeks of paid expanded family and medical leave at 2/3 their regular rate of pay when unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Use of An Employer’s Existing Paid Leave Policy Concurrently with School-Closure Leave   

An employee may elect to use, or an employer may require an employee to use, accrued leave under the employer’s policies, along with the school-closure leave under the EFMLEA.  When this is done, the employee receives 2/3 their regular rate of pay from EFMLEA, and 1/3 from use of their accrued leave.  The employer tax credit is still capped at the amounts set forth in the FFCRA.

Written Policy Not Required

While an employer must post the model notice developed by the DOL  in the workplace where employees can see it, there is no requirement for employers to update leave polices.  However, notifying your employees of their right to this leave is advised.

RESOURCES

HOUSEHOLD EMPLOYEE EMERGENCY PAID LEAVE REQUEST FORM

Posted 10 April 2020; Updated 29 April 2020

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