April 2020 Government Affairs Update

Providing Paid Emergency Leave Under the Families First Coronavirus Response Act

Public employers of all size need to comply with the emergency family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). A temporary rule and FAQs on implementing the act, which took effect April 1 and expires on Dec. 31, 2020, have been issued by the U.S. Department of Labor.

Basics on Emergency Family Leave

Emergency family and medical leave is available to any employee who has been employed for at least 30 calendar days. Additionally, the employee must be unable to work or telework due to a need to care for a child of their own who is younger than 18 and whose school or place of care is closed or whose childcare provider is unavailable due to a public health emergency.

The first 10 days of emergency family leave may consist of unpaid leave. The subsequent 10 weeks of leave would be paid at a rate that is capped at $200/day and $10,000 in total.

An employers needs to make reasonable efforts to restore an employee who take emergency family leave to their same or an equivalent position. If that effort fails, an employer needs to make reasonable efforts to contact the employee when an equivalent position becomes available during the next year. Last, the employer needs to consent for leave to be taken intermittently.

Basics on Emergency Sick Leave

Employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave and part-time employee with paid sick leave on a pro-rated basis when the leave is taken for one of the following reasons:

  • The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine.
  • The employee is caring for a son or daughter of such an employee if the school or place of care of the son or daughter has been closed or the childcare provider of such son or daughter is unavailable due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Emergency paid sick leave is available immediately no matter how long an employee has worked for their employer.

The rate of pay during emergency paid sick leave taken for illness, isolation or quarantine is calculated based on the employees’ regular rate and limited to $511/day and $5,110 in total. When emergency sick leave is taken to serve as a caregivers, the rate of pay is based on 2/3 of the regular rate and limited to $200/day and $2,000 in total.

 

No Requirement to Pay FICA Taxes on Paid Emergency Family and Sick Leave

Under FFCRA rules, employers—including government employers—are not required to pay the employer’s share of FICA taxes on paid emergency family leave or emergency sick leave. Private employers will receive a payroll tax credit equal to the amount of their total FFCRA leave expenditures that they can use to offset the Social Security portions of FICA taxes pay for all their other employees. Government employers are not eligible for those tax credits.

 

New York AG Sues U.S. Department of Labor Over FFCRA Rules

On April 14, 2020, New York Attorney General Letitia James announced that the state had filed challenges to rules implementing the FFCRA on the grounds that they

  • Deny paid sick leave and emergency family leave if the employer determines that there is not work for the employee,
  • Establish an overly broad definition of health care provider resulting in the denial of paid sick leave and emergency family leave,
  • Require employees to secure the consent of employers to take paid sick leave or emergency family leave intermittently; and
  • Condition eligibility for paid sick leave or emergency family leave on an employee having previously provided documentation to the employer.

The lawsuit has been filed in the U.S. District Court for the Southern District of New York.

 

CARES Act Permits Deferral of Employment Tax Deposits and Payments

Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act authorizes the deferral of employment tax deposits and payments, in the employer’s share of Social Security taxes, through Dec. 31, 2020. Payments dating back to March 27, 2020, are eligible for deferral, and deferred deposits must be deposited in the following amounts by the following dates:

  • 50 percent of the deferred amount by Dec. 31, 2021; and
  • The remainder of the deferred amount by Dec. 31, 2022, the remaining amount.

 

EEOC Updates Guidance on ADA and Rehabilitation Act Compliance During the COVID-19 Pandemic

Equal employ opportunity laws continue to apply, but compliance should not prevent employers from following guidelines issued by the CDC or state and local public health authorities. This is the overall message from answers to questions about issues such as disability-related inquiries and medical exams, hiring and onboarding, reasonable accommodations, pandemic-related harassment due to national origin, race or other protected characteristics, and furloughs and layoffs. The complete Q&A is available on the EEOC website.

 

More Guidance on Calculating Regulate Rate

Click here to read summaries of and access three recent opinion letters on calculating employees’ regular rate of pay for determining overtime pay. The opinions from the U.S. Department of Labor’s Wage and Hour Division concern the inclusion of

  • Longevity pay,
  • Referral bonuses, and
  • Employer’s contributions to group life insurance policies for employees.

 For additional information, please contact IPMA-HR Executive Director Neil Reichenberg at nreichenberg@ipma-hr.org.

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