Review Of The Families First Act

by | Oct 13, 2020 | Operations

The 2020 school year is underway, and school districts all across the country are responding differently to the coronavirus pandemic (COVID-19), so I thought it just made sense to review the Families First Act.
 

What Is Families First?

The Families First Coronavirus Response Act, often shortened to FFCRA or Families First, was one of the first legislative responses to the coronavirus pandemic. It was put in place to help employees who are affected by COVID-19 in a number of different scenarios.

It was enacted on March 18, 2020, and went into effect on April 1, 2020, and it’s only effective through December 31, 2020.To Whom Does It Apply?

Families First applies to all employers that have fewer than 500 employees. Such employers are required to provide paid, protected leave to employees who need to be excused from work for COVID-19-related reasons. This was a significant expansion of existing protected leave programs. The federal government also made tax credits available so that, in theory, employers might eventually be made whole.

There is an exemption available for businesses with fewer than 50 employees, but it’s not clear, as of the end of August 2020, how to apply for that exemption. The only guidance has been statements made by the Department of Labor that this exemption applies if Families First compliance would place an undue hardship on your business and likely put you out of business. There’s still, however, not a way to actively apply for the exemption. The guidance of the Department of Labor is simply to maintain as much documentation as you can as to why that exemption would be applicable to you. If you’re ever questioned on it in the future, you would have documentation making your argument that the exemption should be applied.

 

Can You Review the Basics?

Families First has two targeted sections. The first is emergency paid sick leave (EPSL), and the second is emergency family medical leave (EFMLA). These two sections are interpreted and applied very differently.

 

Emergency paid sick leave

The EPSL is the more broad and expansive section of the two. It requires employers with less than 500 employees to provide up to 80 hours of paid sick leave if an employee is unable to work, including telework. Those 80 hours apply immediately — there’s no waiting period under EPSL. Following are the qualifications.

 

Self-Care

The EPSL stipulates a full rate of pay with a $5,110 cap if the employee is out for any of the following:

  • The employee is under a local, federal, or state quarantine order because of COVID-19.
  • The employee has been advised by a physician to self-quarantine because of COVID-19.
  • The employee has decided to self-quarantine because they are experiencing symptoms of COVID-19 and actively seeking a diagnosis from a health care provider.

 

Caring for Others

EPSL stipulates a two-thirds rate of pay with a $2,000 cap if the employee is out for any of the following:

  • The employee is caring for an individual who is under quarantine, whether due to federal, state, or local requirements or the recommendation of a physician.
  • The employee is caring for a child because the school is closed or the child’s childcare provider is unavailable.

 

Emergency family medical leave

The EFMLA portion is much more limited in scope, but what’s being provided is broader. It applies to the employee who is required to care for a child whose school has been closed or whose childcare provider is unavailable because of COVID-19. The EFMLA stipulates that an employee can take 12 weeks of leave, the first two weeks of which are unpaid. For the remaining 10 weeks, however, the employee can collect a two-thirds rate of pay capped at $10,000.

 

EPSL and EFMLA together

These two components are complementary and can be used together. Suppose you need to take time off because your child’s school or place of care has closed due to COVID-19. How does this shake out under the two programs?

  1. You use EFMLA, but you don’t get paid for the first two weeks.
  2. But you can still use EPSL, so you get a two-thirds rate of pay for the first two weeks, with a $2,000 cap (or $1,000 cap per week).
  3. Because you’re also using EFMLA, the remaining 10 weeks are paid to you at a two-thirds rate of pay, with a $10,000 cap (or $1,000 cap per week).
  4. So, in theory, you could get $12,000 for the first 12 weeks you’re caring for your child while their school or place of care is closed.

 

Key Families First definitions

 
Child: A child is a son or daughter under the age of 18. However, if a son or daughter is 18 years or older but has a disability rendering them unable to care for themselves, they are considered a child for the purposes of Families First.

Closed: The Department of Labor has clarified that if the child is unable to be physically left somewhere for school or childcare, Families First applies. Even if virtual teaching is provided, under Families First, that   school is closed.

Childcare: It’s a broad definition, which the Department of Labor interprets very broadly. One description even included unpaid individuals in childcare, such as friends and neighbors: If you generally drop your kid off at a neighbor or friend’s house, and the neighbor or friend is no longer able to care for them due to COVID-19, it would be included in the definition of childcare. It also, of course, includes more standard definitions of childcare, such as daycare centers and nannies.

 

Scenario Questions

 

SCENARIO 1

An employee asks whether their child can stay at the office for the duration of the workday because their childcare closed after a COVID-19 outbreak.

Do I need to allow this?

As the owner, it’s up to you to decide if you’re comfortable with that situation. Staff and patient safety is certainly a reasonable argument for not allowing a potentially exposed child in the office.

Can I ask the employee to quarantine in this case?

As the owner of the practice, you can decide whether you’re comfortable having a possibly exposed employee in the office.

If I ask my employee to stay home, should they be paid?

If the employee doesn’t have another care option available for their child, and you document that properly, the employee would qualify for pay under Families First. Assuming the daycare is going to be closed for two weeks, that would be covered under EPSL. If the daycare decides to close for longer than two weeks, your employee could stay home longer and be covered under EFMLA.

What if the child and employee get COVID-19?

That’s a very straightforward answer. An employee was told by a health care provider to self- quarantine, or they’re indicating symptoms and actively seeking testing, so under EPSL the employee would receive their full pay for that two-week period, with a cap of $5,110.

Can I give them work to do at home?

Both EPSL and EFMLA are protected leaves. The guiding question for Families First is: Will the employee be unable to work, whether in-office or remotely? If that’s the case, it’s covered under Families First. Document it as such so you’re both on the same page. The employee cannot be asked to do work during that time. However, if the employee is just requesting not to come to the office but they can work remotely, then Families First doesn’t apply, and you can give them work.

 

SCENARIO 2

An employee has a first-year student at the University of Hogwarts. A few students are sent home after breaking COVID-19 safety measures, including the employee’s son, so she needs to move her son back home. Her estimated time away is one week.

Does this fall under Families First?

The EFMLA portion applies to children 17 years old or younger, so it depends on the age of your employee’s son. If he’s a 17-year-old first-year student, this probably applies. Another factor is whether the school closed. In this situation, the school itself isn’t closed, but the student has been sent away and doesn’t have a school to go to, and no childcare is available. I would probably err on the side of caution there and say it probably does fall under Families First, but I also think this is an open question that I don’t necessarily have the answer to.

I don’t want an employee traveling to a place where a group of people were not following safety measures. How should I handle this?

Though the Centers for Disease Control and Prevention has provided a lot of recommendations about travel, as an owner, you can’t prohibit your employee from traveling for personal reasons. You can only keep them from traveling for business reasons. But you can ask them to stay away from the practice until you feel comfortable about your clinic’s safety. How do you backfill them in the meantime? Not an easy question. You have to look at your practice’s specific situation and talk with your trusted advisors.

 

SCENARIO 3

An audiologist asks for time off to care for a sick parent who’s been diagnosed with COVID-19.

Do I have to pay her?

Under Families First, we’re talking about a sick parent, not a sick child, so EFMLA doesn’t apply. EPSL does, however, so the first two weeks that they care for their sick parent would be covered at a two-thirds rate of pay. Beyond that two-week period, caring for their parents wouldn’t be covered under Families First.

Should I have her get a COVID-19 test before returning?

It’s going to depend on the availability of testing and whether the test results are received prior to the two-week quarantine period. So if it’s possible, absolutely, but I don’t know that you can necessarily require them to get a COVID-19 test. You could ask them to quarantine if testing is not available.

 

Frequently Asked Questions

 

What type of documentation should be collected?

When your employee requests time off under EPSL or EFMLA, you should document their name, the dates for which the leave is being requested, the specific reason for the leave, and a statement from the employee that the reason given precludes them from working. At a minimum, under any circumstance, you should get that information.

If the reason for a leave request is a quarantine order, document what specific quarantine order was in place at the time of the request. You want to provide what government issued the order as well as the name or number of the order so that it is very clear what order you’re relying on.

If the reason for a leave request is your employee has been advised to quarantine by a health care provider, document the name of the health care provider. The same goes if your employee is caring for someone who’s being advised to quarantine by a health care provider. Don’t require a doctor’s note. If they have a note and are willing to give it to you, that’s OK. You only need enough information to prove a doctor requested quarantine — if you ever get called on it, you can go to that health care provider and request confirmation.

If the employee is requesting leave because a child’s school or place of care is closed, get the name of the child as well as the name of the school, place of care, or childcare provider that has become unavailable. Get a statement from the employee stating they can’t work because they can’t find suitable supervision for the child.

 

If you forgot to request a statement from an employee concerning time off from a few months ago, what should you do?

There’s not a hard and fast rule. I don’t think this would be a significant issue. You could ask the employee to provide the statements. If they’re not comfortable doing that, you could just add a document to your record stating that you didn’t remember to get the statement. However, if the employee told you orally, you can document that this is what the employee told you, that’s what you relied on, and that’s the reason for leave.

 

If an employee presents with COVID-19-related symptoms, they’re sent home, they get tested, and they test negative, do I need to pay for the time off, even though they weren’t COVID-19 positive?

Yes. Under EPSL, you do need to provide paid sick leave for an employee who’s experiencing symptoms and actively seeking the diagnosis. But once they receive the diagnosis and it’s negative, then their sick leave ends. Paid leave is only during the period in which they’re seeking their diagnosis.

 

Do I need to track any leave that I pay out under Families First?

My recommendation would be yes. You want to keep the documentation we’ve already talked about as well as track all the payments made. Remember, tax credits are available to help compensate you for making these payments to your employees, so you want to document as thoroughly as possible.

 

If I have already paid employees for COVID-19-related leave, does it count toward the paid sick leave or family medical leave expansion?

The EPSL stands on its own. It’s a new benefit that must be paid if it applies. If you’ve already paid an employee for sick leave prior to when this act went into effect, you would need to pay the EPSL if it became relevant. However, the EFMLA portion doesn’t stand on its own. FMLA already entitles individuals to 12 weeks of leave for family and medical reasons unrelated to COVID-19. If an employee already took leave in the past 12 months under FMLA, that would reduce the amount of time available to them under EFMLA.

 

For those businesses that aren’t bouncing back quickly, can I lay off or furlough employees even if they’re on Families First leave?

Families First provides protected leave; employees can’t be fired or otherwise discriminated against because they’ve taken this leave. However, if there are legitimate business reasons to lay off or furlough an employee currently on Families First leave, and you can show those legitimate business reasons, it’s permitted. If that employee would have been laid off or furloughed regardless of Families First leave, then you can take that action.

 

If an employee has symptoms that occur for both COVID-19 and allergy sufferers, am I required to have them get tested or stay home every time they experience one of these symptoms?

Families First is employee driven. If an employee requests leave because of COVID-19 symptoms, then Families First has been triggered and you need to follow the process. If you simply notice that the employee has a cough or runny nose, under Families First you’re not required to do anything.

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