Team Management

Everything Small Businesses Need to Know About the Families First Coronavirus Response Act

Caleb Newquist Editor-at-Large, Gusto 
Families First Coronavirus Response Act Employer Guide - Gusto

In response to the novel coronavirus, aka COVID-19, outbreak, President Trump has signed into law emergency legislation known as the Families First Coronavirus Response Act (FFCRA) to assist American families and businesses. You could read the law and try to understand it for yourself, or you could read our analysis of it below.

Overview of the new law

Real quick: The intent of the new law is to provide emergency paid sick leave and paid family and medical leave, as well as additional funding to food assistance and unemployment programs, in response to COVID-19. According to Pew Research, almost a quarter of American workers do not have paid sick leave. Many of these people work for small businesses that employ between 1 and 100 employees. Likewise, the US doesn’t have nationally mandated paid family and medical leave.

The Families First Coronavirus Response Act (FFCRA) steps in to close the gap for these workers by providing two weeks of paid sick leave. It also provides up to 12 weeks of family and medical leave by making amendments to the Family and Medical Leave Act (FMLA).

Please note: These benefits are not permanent; they only apply to a public health emergency (PHE) due to the COVID-19 outbreak.  

Because this is an additional cost for small businesses, the FFCRA also provides some exemptions and tax credits for those who qualify. These benefits are also available to the self-employed and gig workers through tax credits, although the FFCRA has a few extra requirements for demonstrating that such workers comply with the rules.

So if you’re ready, let’s wash our hands, give each other six feet of space, and go through the details of this new law together. OK? Alright.

Timing

The FFCRA was signed into law on March 18, 2020 and the government agencies have been instructed that they must be ready within 15 days of that date to support these new types of leave. All of the benefits will expire on December 31, 2020.

Food assistance for low-income families

The first part of the FFCRA relates to assistance for families who normally receive reduced or free school lunches. There is additional funding for food programs such as the Supplemental Nutrition Assistance Program (SNAP), the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and The Emergency Food Assistance Program (TEFAP).

How families qualify

If schools for children of these families are consecutively closed for five days or more, the families will be eligible for additional food assistance through meals at home. 

How it’s administered

These benefits will likely be provided through the regular electronic benefit transfer (EBT) system currently used for these programs.

Emergency paid leave 

One of the new benefits created by the FFCRA is what’s known as “emergency paid leave.” If an individual is unable to work because COVID-19 has affected them in one of the ways detailed below, they may be able to take up to two weeks (10 workdays) off and still get paid.

How employees qualify

There are several instances where an employee will qualify for emergency paid leave, including the following: 

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The employee is quarantined at the direction of a health authority or healthcare provider to prevent spread of COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and is seeking a diagnosis.
  4. The employee is caring for another person who is subject to #1 or #2 above.
  5. The employee is caring for a child or another person due to closure of a school or other facility due to COVID-19.
  6. The employee is experiencing similar conditions that have been specified by the US Department of Health and Human Services (HHS). 

How much paid leave 

Full-time employees are eligible for 80 hours and part-time folks get their average number of hours worked in a two-week period.

Rate of pay

The amount of the benefit depends on how the employee qualifies. For example, if an individual is subject to #1, #2, or #3 above, they will be paid the greatest of:

  • Their regular rate of pay;
  • The Fair Labor and Standards Act (FLSA) minimum wage rate; or
  • The state or locality’s minimum wage rate.

The maximum benefit is $511 per day for 80 total hours (i.e., two work-weeks), which works out to a total maximum benefit of $5,110.

If an employee qualifies because of #4, #5, or #6 above, then the amount is two-thirds of the applicable rate, with a maximum benefit of $200 per day and a total max benefit of $2,000. 

Conditions apply

Always! Both employers and employees are subject to some conditions under this new kind of leave. We’re breaking them out to keep things clear.

For employees:

  • Emergency paid leave does not carry over from one year to the next. 
  • Emergency paid leave ends as soon as the employee’s next scheduled shift starts after they no longer qualify for the paid time.
  • Employees don’t have to find anyone to cover for them if they’re taking emergency paid leave.
  • Employees can use emergency paid leave before their regular accrued paid sick time, if they have it. 
  • Emergency paid leave does not reduce other accrued leave that an employee may have already. 

For employers:

  • Employers have to post all this information in a conspicuous place, like a break room. The US Department of Labor (DOL) provides posters that most employers can use.
  • An employer cannot fire, discipline, or discriminate against any employee for using or requesting emergency paid leave.
  • Employers who are subject to bargaining agreements must contribute expected amounts to a fund, and the union will distribute to its members as requested.

Any exceptions?

Yep. Employers with fewer than 50 employees may be exempt, but only if the requirements will jeopardize the business’s viability as a going concern, as decided by the US Secretary of Labor. Also, employees who are healthcare workers or emergency responders can be excluded by their employers because, you know, they’ll probably be working during a PHE.

How can Gusto and policymakers support your business during COVID-19?

Emergency paid leave amendments to the Family and Medical Leave Act

During normal business circumstances, the FMLA protects workers by preventing businesses from dismissing them for certain medical or family situations.

The FFCRA amends the FMLA to include paid leave for public health emergencies when an employee is unable to work (or telework) due to a school or child care facility closure, or if the individual is unavailable as a result of COVID-19 precautions.

So FFRCA not only provides paid sick leave for employees who have been impacted by COVID-19, it also provides them emergency family leave, and protects them from losing their jobs.

The benefits of PHE leave under FMLA

Paid family and medical leave under the FMLA will be slightly different from the emergency paid leave that we described above. Here are the details:

  • Employees are eligible for two-thirds of their regular pay based on the hours they’d normally work. 
  • Benefit cannot exceed $200 per day or the aggregate of $10,000 and 50 days. 
  • Variable-hour employees will be eligible based on the average number of hours they worked in the six months prior to the start of their leave.   
  • If the employee didn’t work the last six months, then it will be based on the amount that was anticipated when they were hired.

Who’s eligible?

Employees are eligible if they have been employed for at least 30 days and are unable to work because of the need to care for a child under 18 years of age whose school or place of care has been closed, or if they are unavailable due to a COVID-19 PHE. Just like the emergency paid leave, employees who are healthcare providers and emergency responders are not eligible for this benefit. 

Who’s subject to these new rules?

These FMLA amendments will apply to employers with fewer than 500 employees. 

Conditions apply

Just like for emergency leave, we’ve broken out the conditions between employers and employees.

For employees:

  • An employee may elect to use other accrued paid sick, personal, or vacation time during the first 10 days of leave. This would allow employees to still get paid during the initial period of emergency leave under FMLA.
  • An employee must provide the employer with notice as soon as is practical, and the employer may require documentation to support the need.

For employers:

  • Like all leave under the FMLA, the employer must restore the employee to their position after the leave has ended. 
  • An employer does not have to pay an employee for their first 10 days of leave, but must pay for every day of leave after the first 10 days have passed.
  • Employers of unions must contribute to a fund that will be distributed by the union to its members based on their hours worked.

Any exceptions?

Employers with 50 employees may be exempt from these requirements if the US Secretary of Labor determines that they will jeopardize the business’s viability as a going concern.  

Employers with fewer than 25 employees can be exempt from restoring an employee to their position after their leave but only if they meet the following criteria:

  • The position no longer exists due to economic conditions caused by the PHE
  • The employer makes reasonable efforts to restore the employee to a similar position with equivalent compensation and benefits
  • If the above fails, the employer makes reasonable efforts in the year following the end of the leave (or 12 weeks after the leave starts, whichever is earlier) to let the employee know when an equivalent position exists again

Consistent with the FMLA, these new amendments make it very difficult for an employer to dismiss a worker for taking this leave. And they can only do so after trying to provide recourse via another equivalent position.

Coverage for COVID-19 testing

The other major piece of this legislation is coverage for COVID-19 testing. All health insurance plans are required to provide Food & Drug Administration-approved testing and any related office, urgent, emergency care, or telehealth visits related to a COVID-19 diagnosis free of charge.

That means no premiums, no co-pays, no deductibles, etc. Medicare, Medicaid, Children’s Health Insurance Program (CHIP), Indian Health Service, and TRICARE are all required to do the same. 

Employer tax credits for providing these benefits

Employers, including self-employed folks, can qualify for tax credits to offset the cost of both emergency paid leave and paid leave under the FMLA. The credits are pretty similar, but we’ve broken both out here to keep things simple.

Tax credit for FMLA PHE leave

Any PHE paid leave under the FMLA can be 100% covered by way of a tax credit on an employer’s share of Social Security taxes on a quarterly basis. Remember, the amount per paid day for an employee shall not exceed $200 with a $10,000 maximum for the year.

The quarterly tax credit cannot exceed the employer’s share of Social Security taxes in that quarter, however, any excess credit can be used by the business as an overpayment against future tax.

In addition to the paid leave, health plan expenses paid by the employer while the employee is on leave can also be counted toward the 100% paid in wages to the employee. This should be done on a pro rata, or proportional, basis for each employee and must be directly related to additional costs the employer had to take on as a result of supporting these new emergency paid leave options.

Who’s eligible for the tax credit?

All employers are eligible if they pay wages related to the new types of emergency leave mentioned above. Self-employed individuals are also eligible for a tax credit within the same limits as if they were an employee at another business. If they’re unable to work due to the same factors as a qualified employee, they can get either $200 per day or 67% of their average daily self-employment income, whichever is lower. 

Conditions apply

Self-employed individuals have a maximum of 50 days for use of the credit for FMLA PHE leave. Those who are self-employed should maintain documentation to prove their eligibility for all of this.

Tax credit for emergency paid leave

Employers can have 100% of emergency paid leave covered by payroll tax credits on a quarterly basis, but only for a maximum of 10 days for each employee, including days in previous quarters.

Recall, the amount of emergency paid leave per day for an employee is limited to $511 if the employee is qualified because of #1, #2, or #3 (i.e., self care), or $200 per day if the employee is qualified because of #4, #5, or #6.

Just like the credit for leave under the FMLA, this quarterly tax credit cannot exceed the employer’s share of Social Security taxes in that quarter. The excess tax credit can be used by the business as an overpayment of taxes that can be applied to tax in a future period. 

The qualified health plan expenses an employer pays in order to provide and maintain the group health plan while an employee is on emergency leave can also be counted above the 100% paid in wages to the employee. Again, all of this should be done on a pro rata basis for each employee and must be directly related to additional costs the employer had to take on as a result of supporting these new paid leave options.

Who’s eligible for the tax credit?

Just like the FMLA credit, self-employed individuals are eligible for a tax credit within the same limits as if they were an employee at another business. 

How much is the credit?

If an individual is unable to work, they can get the lesser of $511 or 100% of their average daily self-employment income (or $200 or 67% as noted above). 

Conditions apply

Self-employed individuals should maintain documentation to prove eligibility for all of this.

What’s next?

An economic stimulus bill that will include support for businesses and direct payments to individuals is in the works, but in the meantime, other federal and state have enacted loan and relief programs to help support people and businesses affected by COVID-19.


Updated: April 14, 2020

Caleb Newquist
Caleb Newquist Caleb is Editor-at-Large at Gusto. In 2009, he became the founding editor of Going Concern, the one-of-a-kind voice on the accounting profession, serving in the role for 9 years. Prior to Going Concern, Caleb worked as a CPA for nearly 6 years in New York and Denver. He lives in Denver with his wife, daughter, and two cats.

Comments

  • Marleen Barlow

    Do employee’s file for these benefits through any state websites, or is that up to the employer to apply for the credits to be able to pay them? And, if an employer is continuing to pay their employee’s after they have been sent home, does the employee need to track how much time they spend at home working vs caring for family or helping kids with school work?

    Reply
    • Gusto Editors

      Hi Marleen! As an employee, there’s no “filing” to be done with anyone. Employers are required to pay employees under this act and your employer will file for the tax credits when they file their quarterly payroll tax returns (i.e., Form 941). You’ll only need to file claims if you’re trying to get unemployment benefits.

      Reply
  • Heather

    Is this something we have to sign up for and if so do you have the link to do so?

    Reply
    • Gusto Editors

      Hello, Heather! This isn’t something you need to sign up for, as emergency paid leave and emergency family leave work similar to regular paid sick or regular paid family leave. Your employer will just continue to pay you. You’ll only need to file claims if you’re trying to get unemployment benefits.

      Reply
    • Christine Ra

      If you are getting unemployment can you still get the emergency PAID leave act or FMLA if you have A child out of school?

      Reply
      • Gusto Editors

        Hi Christine, you cannot. But each state has its own rules regarding partial unemployment where hours are reduced, so you should contact the state unemployment insurance office to confirm. For more information, see Question 29 of the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

        Reply
  • Becky

    1. Can an employee collect unemployment from the state (La) and also be eligible to collect under the Emergency paid leave act or FMLA.
    2. Will standard payroll deductions still be taken out of any benefits, ie taxes/501k/health ins etc.
    3. Are Dental office employees eligible for benefits or are they exempt as healthcare workers?
    Thank You.

    Reply
    • Gusto Editors

      Hi Becky! 1. If you’re still getting paid by your employer, you are not eligible for UI benefits. 2. Yes, most likely. The new Emergency Paid Leave and Family Leave will function very similarly to paid sick and paid family leave. When someone is out on paid sick leave, the employer doesn’t stop withholding taxes.3. Since rules and regulations change over time and can vary by location, consult a lawyer or HR expert for specific guidance on this!

      Reply
  • Mary aly

    Where do I apply for FFCRA benefits.

    Reply
    • Gusto Editors

      Hi Mary! Emergency paid leave and emergency family leave work similar to regular paid sick or regular paid family leave. Your employer will simply keep paying you as an employee within the requirements, so there’s no need to apply to these benefits. The only time you need to file claims is when you are trying to obtain unemployment benefits.

      Reply
  • Ryan

    Earlier you noted that the employer files for the credits as part of the 941, which is a tax form that Gusto submits as part of your service. What is your process for employers to track and file for these credits? We are quickly coming up on the 3/31 and April deadline to file the 941s. Thank you.

    Reply
    • Gusto Editors

      Hi Ryan! Our team at Gusto is hard at work to ship out a feature to support this ASAP. Thank you for your patience!

      Reply
  • Beatrice

    As an employer, how are we meant to track this pay in Gusto? Is there a separate PTO benefit listed? Or a section on the hours entry forms when doing payroll?

    Reply
    • Gusto Editors

      Beatrice, our product team is working to have a feature to help track emergency sick leave and emergency FMLA in Gusto. You’ll hear more from us very soon!

      Reply
  • Ian Sambrano

    Hello! How will the reimbursement will be handled? According to the IRS, employers who pay qualifying leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying leave that we pay. Therefore, am I correct in thinking that we shouldn’t be out any funds? Thanks!

    Reply
    • Gusto Editors

      Hi Ian, in Gusto, you’ll be paid your employer tax credits instantly upon approving emergency leave!

      Reply
  • Daniel Schroeder

    Will Gusto be filing the tax credit paperwork each quarter? Or will be required to do this manually?

    Reply
    • Gusto Editors

      Hi Daniel—regarding federal emergency leave tax credits, our current plan is for Gusto to handle the filing!

      Reply
  • Kevin

    Is an employee of an independent diagnostic radiology company, not part of any healthcare facility, but provides diagnostic radiology services for primary care providers considered an exempt employee as a healthcare provider? Similarly, would an independent diagnostic radiology company (employer) and not part of any healthcare facility be considered a healthcare provider, and thus be exempt from FMLA or PHE?

    Reply
    • Gusto Editors

      Hi Kevin, since rules and regulations change over time and can vary by location, we recommend you consult a lawyer or HR expert for specific guidance.

      Reply
  • Joshua Wynn

    As an employer with only 2 employees, I want to make sure they are taken care but some things seem unclear. For the FFCRA, I understand first 10 days are unpaid but may be paid using emergency sick leave, but then once FFCRA pay starts, is there a time limit or could the employee stay on it forever? Seems like there must be some kind of limit the same way the emergency sick leave is 2 weeks. Also it mentions that if we start an employee right now on FFCRA or sick leave, then we can’t claim the credit, is that correct. So we basically have to wait till April 2nd to provide this benefit, because without the credit, paying the employees for that amount of time without working will bankrupt us.

    Reply
    • Beatrice

      It says there is a financial limit as well as a 50 day limit (10 weeks beyond the first two for a total of 12 weeks). Payroll tax credit for these benefits starts with the 2nd quarter, April 1st.

      Reply
    • Gusto Editors

      Hi Joshua, your employees are entitled to take up to 12 weeks of emergency FMLA leave, provided it’s for a covered reason. There are limits on how much you will have to pay as an employer. Above that amount or if the max credit is reached, the rest of the employee’s leave would be unpaid unless you choose to make up the difference. Regarding your second question, if you decide to give leave before April 1, not only may you not be able to claim the credit, but as of April 1 you still be obligated to provide the full leave entitlement and can’t reduce the number of hours by what you already granted. For example, if someone takes 8 hours of paid sick leave before April 1 for a reason covered by the emergency paid sick leave law, come April 1, they still get up to 80 hours of emergency paid sick leave (not 72).

      Reply
  • Jill

    Do you have a specific link for DOL where we can request exemption?

    Reply
  • Teresa

    Will self employed hairdressers get help. If I am not behind the chair I don’t make money. My client are staying home due to the coronavirus. So I can’t pay my rent to the owner of the building, electric bill or my mortgage or utilities and food. What should this type of worker do for incomes?

    Reply
    • Gusto Editors

      Hi Teresa — yes, these benefits and credits are also available to the self-employed and gig workers, although the FFCRA has a few extra requirements for demonstrating that such workers comply with the rules.

      Reply
  • Gin

    How will independent contractors (1099’s) apply for the FFCRA Paid Sick Leave and the Emergency Paid Family Leave? Is this the same or in conjunction with the FMLA PHE leave? Thank you.

    Reply
    • Gusto Editors

      Hello, Gin! Yes, gig workers will have these benefits and credits available to them (keep in mind you may be required to provide further documentation to show you’re complying with the rules).

      Reply
  • Nicole Kenstavicius

    What if you are a self contractor and file under a 1099? My job has been postponed at least until the quarantine has been lifted. Can I file for myself with the government? Or does the company I work for still have to be the ones that file?

    Reply
    • Gusto Editors

      Hi Nicole, since these benefits and credits are also available to the self-employed and gig workers, it’s likely you should be able to file but you’ll want to verify with a lawyer or HR expert.

      Reply
  • Sam

    1) Are essential businesses exempt from this mandate?
    2) Do businesses automatically offer this paid leave? Or do employees need to request it?

    Reply
    • Gusto Editors

      Hi Sam, so far, the law states that employees who are healthcare workers or emergency responders can be excluded by their employers. Employers are required to offer this leave to employees, and employees won’t need to apply for it.

      Reply
  • matt

    most of my employees are applying for unemployment benefits, because we closed 2 weeks ago. should I pay them with the “emergency paid leave” or FMLA benefits?

    Reply
    • Gusto Editors

      Hi Matt — we recommend consulting a lawyer or HR expert for specific guidance on your situation!

      Reply
  • sherry Lentfer

    As a small employer of 7, where do we file for and exemption for the US Secretary of Labor FMLA exeption application for employers under 25 employees?

    Reply
    • Gusto Editors

      Employers with under 25 employees are not required to restore an employee’s previous position under the Emergency Family and Medical Leave Expansion Act only in all four of the following conditions are met:
      • EE took leave b/c childcare was closed or unavailable
      • EE’s position no longer exists due to economic or operating conditions that affect the job and are caused by a public health emergency
      • ER made reasonable efforts to restore job to same or equivalent position
      • ER’s makes continuous reasonable effort to restore EE position for at least 1 year beginning either on the date the COVID-19 related reason concludes or 12 weeks after the EE’s leave began, whichever is earlier.
      The Department of Labor is requesting that ERs currently document these reasons and not send in requests for exemption.

      Reply
  • Kate

    If we have already furloughed our employees prior to 4/1 when this takes effect, are we required to re-instate them? They have already filed for unemployment benefits.

    Reply
  • kh

    Are furloughed employees eligible for any paid leave benefits.

    Reply
  • Laura

    What is Gusto doing on their end to set up pay codes to make sure wages are refunded if applicable?

    Reply
    • Gusto Editors

      Hi Laura, in Gusto, you can record emergency leave and receive your employer tax credits instantly!

      Reply
  • Kristian Hamilton

    I’ve seen many “clarifications” of the new regulations indicating that the first two weeks of sick leave may be unpaid, but I have been unable to find further information clarifying why/how to apply that detail. I do understand that FMLA leave can have the first two weeks unpaid. So then, would the “first two weeks unpaid” only apply if we are required to provide FMLA coverage (we are not, as we have fewer than 50 employees)?

    Reply
    • Gusto Editors

      As a reminder, emergency FMLA leave is only allowed for care for a child because their school or place of care is closed. Provided the employee is taking leave for this reason, the first 10 days are still protected leave and are covered, although they are unpaid. However, for those first unpaid 10 days, the employee has the option to concurrently take paid sick leave under the FFCRA since one of the reasons for taking paid sick leave under the FFCRA is to care for a child due to closure of a school/daycare. For more information, see Question 10 of the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

      Reply
  • paul schultz

    The Wage and hour poster says the provision apply from April 1 through December 2020. So what if the employee met the qualifying reasons during March when governors shutdown businesses and isolations began?

    Reply
    • Gusto Editors

      Hi Paul, the FFCRA can only apply to leave taken between April 1, 2020 and December 31, 2020.

      Reply
  • Ted

    For part-time employees, do I understand that under the FFCRA they are eligible for 10 days of their average hours that are determined based on the prior 6 months of payroll?
    If so or something close, could Gusto create within their report writer ability to gather that data?

    Reply
    • Gusto Editors

      Hi Ted, with paid sick leave under the FFCRA, part-time employees are entitled to take a pro-rata portion of leave based on their work hours. If they have normal weekly schedule, the hours they can take is up to the hours they are normally scheduled to work over a two week period. If normal hours are unknown or hours vary, the employee is entitled to take up to the number of hours equal to 14 times the average number of hours the employee was scheduled to work each calendar day over the 6 month period.

      If the employee has been employed few than 6 months, the employee is entitled to take up to the number of hours equal to 14 times the number of hours agreed to at the time of hire that the employee would on average work each calendar day. If no such agreement, then they are entitled to take up to 14 times the average number of hours per calendar day they are scheduled to work over the entire period of employment.

      For more information see Rule 826.21 of the DOL Rules: https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

      Reply
  • kris

    Under FMLA, the article says that employers don’t need to pay for the first 10 days of leave, but isn’t that the point of the FFCRA? Doesn’t that give people those 10 days?

    Reply
    • Gusto Editors

      As a reminder, emergency FMLA leave is only allowed for care for a child because their school or place of care is closed. Provided the employee is taking leave for this reason, the first 10 days are still protected leave and are covered, although they are unpaid. However, for those first unpaid 10 days, the employee has the option to concurrently take paid sick leave under the FFCRA since one of the reasons for taking paid sick leave under the FFCRA is to care for a child due to closure of a school/daycare. For more information, see Question 10 of the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

      Reply
  • Emma Sweeney

    We are a small business (only 4 of us total) and we’re fully remote – spread between Maine and Maryland- so I believe that disqualifies us from the FMLA/Sick Leave policies (that were in place before the CARES Act). I just want to be sure that nothing changed with the new CARES Act.

    Reply
    • Gusto Editors

      Hi Emma — you’ll want to double-check with the Department of Labor just to be sure!

      Reply
  • Jolie P

    If I was approved for FFCRA by my employer due to childcare can I also apply for unemployment insurance to supplement. Or is that the option after the 10 weeks?

    Reply
    • Gusto Editors

      Hi Jolie, you cannot. But each state has its own rules regarding partial unemployment where hours are reduced, so you should contact the state unemployment insurance office to confirm. For more information, see Question 29 of the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

      Reply
  • Maria

    I have a question i work at a pharmacy and there is only less then 10 persons at the business but i need to know if I qualify for the leave if i need to take care of my children for the reason of school closure and will i still be protected

    Reply
  • Jenny Chang

    what about non-exempt hourly employees? Employers required to follow the same mandates for these employees?

    Reply
  • Courtney Bodendorf

    In New York we have been mandated to stay home. We can work some hours from home but our hours have been drastically cut. Can we use the Emergency Leave to supplement the hours?

    Reply
    • Gusto Editors

      Hi Courtney — we can’t provide legal advice on individual situations. You’ll want to consult an HR expert or an attorney offline so they can look more into your specific case!

      Reply
  • Billy

    Hey Gusto, Under the heading above:
    “Any exceptions?”

    You say: “Employers with fewer than 50 employees may be exempt, but only with permission from the US Secretary of Labor”.

    That doesn’t appear to be. Here’s a link to take a look at and see if you should update your info:

    https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

    (b) Exemption from requirement to provide leave under the EPSLA Section 5102(a)(5) and the EFMLEA for Employers with fewer than 50 Employees.

    (1) An Employer, including a religious or nonprofit organization, with fewer than 50 Employees (small business) is exempt from providing Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave under the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern. A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:

    (i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

    (ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

    (iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

    (2) To elect this small business exemption, the Employer must document that a determination has been made pursuant to the criteria set forth by the Department in § 826.40(b)(1). The Employer should not send such documentation to the Department, but rather retain the records in its files.

    (3) Regardless of whether a small Employer chooses to exempt one or more Employees, the Employer is still required to post a notice pursuant to § 826.80.

    Reply
    • Gusto Editors

      Hi Billy, thanks for your note and we’ve updated the article to reflect this.

      Reply
  • lindsay

    Hi! How do we apply this for workers only able to work a portion of their schedule, due to schools being closed? Is it possible to pay both regular (but substantially reduced) hours and apply emergency FMLA for the remainder of the hours?

    Reply
    • Gusto Editors

      Hi Lindsay! Yes, it is possible, and so long as it’s for school closure and your employer agrees to it, you can take it intermittently. For all other reasons, unless you are teleworking, the paid sick time can only be taken in full-day increments (so as to reduce the risk of spread). If you are teleworking, your employer can agree to intermittent sick leave for any of the covered reasons.

      Reply
  • Debyluz

    What benefits do I have after I’ve use the FFRCA for child care? I had to use 56 hours of FFRCA because I was being tested for COVID-19 (which was negative). Now, moving forward, I’ve used up most of the FFRCA for myself. I still need to take a few days off during the week for childcare. Do I then file for unemployemnt? What other benefits can I ask my employer to use so that I can take time off for my kids?

    Reply
    • Gusto Editors

      Hi there — given the complexities of your individual situation, we recommend you consult with an attorney or HR expert to learn more about your options, as they may vary by state and industry.

      Reply
  • Clare Crawford

    We had an employee who was out sick for one week in April due to COVID-like symptoms. Kaiser declined testing him because his case deemed to not be severe enough. He used his sick leave for that one week because we didn’t know about the emergency COVID leave at the time. Can I do anything NOW to convert that sick leave into emergency COVID leave? The payroll had already been processed.

    Reply
    • Gusto Editors

      Hi Clare — for support questions about your Gusto account, check out the Help tab in your Gusto account or head to https://manage.gusto.com/help.

      Reply

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