The federal government has passed the Families First Coronavirus Response Act (“FFCRA”) March 18, 2020. The FFCRA was designed to assist workers who were disabled after exposure to COVID-19 while maintaining government-mandated quarantines or caring for someone else in quarantine. The law required Employers with fewer than 500 employees (“insured employers“) To pay certain employees paid emergency sick leave, emergency medical leave and / or extended emergency family leave and medical leave (together”Leave FFCRA”) As described in more detail below.
In particular, the FFCRA did not let employers hang out to dry. It provided a dollar for dollar reimbursement in the form of a federal tax credit to insured employers who were required to pay employees’ FFCRA vacation by December 31, 2020.
The FFCRA expired on December 31, 2020, but parts were extended in the Consolidated Funds Act (“CAA”) Legally signed by President Trump on December 27, 2020. In contrast to the FFCRA, the CAA does not need insured employers to pay for FFCRA leave. Instead, these insured employers have the option to do so between January 1, 2021 and March 31, 2021. If they choose to pay FFCRA leave to skilled workers, insured employers receive the same federal tax credit as they do in the FFCRA. Descriptions of the different types of FFCRA vacations are provided below.
- Paid Emergency Sick Leave (“EPSL”). In order to qualify for EPSL, an employee must be incapacitated for work due to COVID-19 symptoms and / or quarantine under a federal, state, or local ordinance. Insured employers who choose to pay EPSL pay qualified workers their regular wages for up to two weeks while the worker remains unemployed. Of course, this only applies to employees who cannot telework.
- Family Leave and Emergency Medical Leave (“EFML”). To qualify for EMFL, an employee must be unable to work because they are either caring for someone else who is in quarantine according to an official order, or a child whose school or carer is closed due to COVID-19. Employees who choose to pay EFML pay qualified employees two-thirds of their regular pay for up to two weeks.
- Extended Emergency and Family Leave (“EEFML”). To qualify for EEFML, an employee must have been employed for at least 30 days and be unable to work to care for a child whose school or carer is closed due to COVID-19. Insured employers who choose to pay EEFML pay qualified workers two-thirds of their regular pay for an additional 10 weeks.
Insured employers are in a position where they can pay their employees FFCRA vacation (and in which case they are eligible for a dollar to dollar tax credit) until March 31, 2021, but they are not required to do so .
FFCRA Vacation, Tax Credits, and Employee Compensation
The FFCRA and CAA should, in part, take care of employees of certain employers, if the employees may otherwise not be entitled to employee compensation. Below we have described some of the most common situations.
- From April 1, 2020 to December 31, 2020. Suppose an employee is properly quarantined after being exposed to someone with COVID-19, whether at work or otherwise, and has not been diagnosed with COVID-19 during the quarantine period[1]He is not entitled to employee compensation benefits. However, he is entitled to paid leave from the FFCRA.
- If instead the employee was diagnosed with COVID-19 during the quarantine period, they may be eligible for employee compensation. His claim would depend largely on whether he qualified for the rebuttable presumption as we are discussing it, as well as the specific facts of the situation.
- From January 1, 2021 to March 31, 2021. Assuming that an employee is properly quarantined after exposure to someone with COVID-19, be it at work or otherwise, and is not diagnosed with COVID-19 during the quarantine period, he or she is not entitled to any employee compensation nor on paid leave from the FFCRA. However, his employer may choose to pay for FFCRA leave. If the employer has fewer than 500 employees, they are eligible for a dollar-for-dollar federal tax credit refund.
- If the employee is diagnosed with COVID-19 during the quarantine period, they may be eligible for employee compensation, depending on the availability of the rebuttable presumption and the facts.
For any legislative change, employers, carriers, and third-party administrators should consult an employee compensation attorney on any COVID-19 claim. Every situation is very factual.
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