Families First Paid Leave FAQ + Refresher

As the coronavirus spreads and intensifies, the paid leave made available by the Families First Coronavirus Relief Act (FFCRA) continues to play a major role in the way the Community Action network is operating and responding to the pandemic. While the leave expires on December 31, 2020, we continue to be contacted with questions about its availability and use. We have therefore compiled a list of commonly asked questions based on the consultations we have received in an effort to help the Network more efficiently and effectively address outstanding issues relating to the leave during its final days of availability. If you have any additional questions, please refer to guidance issued by the DOL and IRS, as well as our March 2020 News Flash regarding Paid Leave under the Covid-19 Response Act, and feel free to contact CAPLAW for assistance.

Table of Contents

1. When is an employee eligible for FFCRA Paid Leave?
2. May an employee experiencing symptoms of COVID-19 take EPSL while voluntarily self-quarantining?
3. What documentation must an employer provide to the IRS to receive FFCRA tax credits?
4. What documentation does an employee have to provide to support their qualifying reason for FFCRA leave?
5. If an employee’s child stays home and attends school virtually despite the school remaining open, does the employee qualify for FFCRA leave to care for the child?
6. What qualifies as a “federal, state, or local quarantine or isolation order”?
7. Are employees able to use EPSL or EFMLA Leave intermittently?
8. May employees use their remaining EPSL and EFMLA leave hours at any point beyond December 31, 2020?
9. Should payroll taxes be withheld from EPSL and EFMLA leave wages?
10. How are employers reimbursed for the EPSL and EFMLA leave wages they have paid out?
11. How should employers that are federal grant recipients apply the credits that they claim from the IRS?

1. When is an employee eligible for FFCRA Paid Leave?

The FFCRA creates Emergency Paid Sick Leave (EPSL) and expanded Family and Medical Leave Act (EFMLA) Leave. An employee qualifies for Emergency Paid Sick Leave where the employee is unable to work in-person or remotely, and where:

1. the employee is subject to a Federal, State, or local quarantine or isolation order,
2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19,
3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis,
4. the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19,
5. the employee is caring for their son or daughter if the child's school or place of care has been closed, or if the childcare provider of the son or daughter is unavailable due to COVID-19 restrictions, or

6. the employee is experiencing any 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. (As of this writing, the Secretary of HHS has not specified any "substantially similar conditions" under this provision.)

Employees who qualify for EPSL are entitled to up to 80 hours of leave which is paid at different rates depending on the qualifying reason. Once an employee begins to use EPSL the employee must continue using it until either a) they exhaust all 80 hours of EPSL, or b) they no longer qualify for EPSL, whichever comes first.

In addition to EPSL, an employee who has been employed for at least 30 days may be eligible under the FFCRA to take up to 12 weeks of EFMLA leave for qualifying reason number 5 (the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19). The first two weeks of EFMLA leave are unpaid; however, an employee who qualifies for EFMLA would also qualify for EPSL, and (provided they have not already exhausted EPSL) would be eligible to receive EPSL leave during those two weeks. In this case, EPSL and EFMLA leave could run concurrently. The remaining 10 weeks of EFMLA leave for that qualifying employee would be paid at 2/3 their regular rate of pay.

If you are an employee and you are not sure if you qualify for FFCRA paid leave, you may use this tool created by the DOL to determine your status.

2. May an employee experiencing symptoms of COVID-19 take EPSL while voluntarily self-quarantining? 

Not unless the employee has also sought, or is seeking, a medical diagnosis regarding their symptoms.

Section 5102(a)(3) of the FFCRA requires that employees experiencing symptoms of COVID-19 must also seek a medical diagnosis before they qualify for EPSL. This requirement can be met by the employee in a number of different ways, including scheduling a COVID-19 test or contacting their health care provider to inquire about getting a medical diagnosis.

Employees who qualify for EPSL because they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis do not also qualify for EFMLA leave under FFCRA. Employees only qualify for EFMLA leave where they cannot work in-person or remotely because they are caring for their child due to their school or place of care being closed or unavailable for COVID-19 related reasons.

3. What documentation must an employer provide to the IRS to receive FFCRA tax credits?

The IRS has issued guidance on what information employers should collect from employees taking FFCRA leave to substantiate employer eligibility for EPSL or EFMLA leave tax credits.

To substantiate their eligibility for these credits, employers should require employees seeking FFCRA leave to submit a written request for such leave in which the employee provides:

1. Their name;
2. The date(s) for which leave is requested;
3. A statement of the COVID-19 related reason the employee is requesting leave, along with written support for such reason; and
4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of an EPSL request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the government entity ordering quarantine or the name of the health care professional advising self-quarantine. In the case of an EPSL and/or EFMLA leave request based on a school closing or childcare provider unavailability, the statement should include the following:

1. the name and age of the child (or children) to be cared for,
2. the name of the school that has closed or place of care that is unavailable, and
3. a representation that no other person will be providing care for the child during the period for which the employee is receiving leave.

If the child is over fourteen and needs to be cared for during the day, the employee’s statement should say that special circumstances exist requiring the employee to provide care.

4. What documentation does an employee have to provide to support their qualifying reason for FFCRA leave?

An employee must provide their employer with the following information when requesting EPSL or EFMLA, either orally or in writing:

1. Employee's name
2. Date(s) for which leave is requested
3. Qualifying reason for leave
4. A statement that the employee is unable to work because of the qualifying reason for leave

Depending on the employee’s qualifying reason for leave, they may also need to include the name of the government authority that issued a quarantine or isolation order, the name of the health care provider who advised them or the individual they are caring for to self-quarantine, or the name of the child they are caring for, the name of the school or childcare provider that has closed or is unavailable, and a statement that no other suitable person is available to care of the child.

An employee does not need to provide this documentation prior to taking EPSL or EFMLA leave. Instead, documentation may be given “as soon as practicable,” which would usually occur when an employee provides an employer with notice of the need for leave.

5. If an employee’s child stays home and attends school virtually despite the school remaining open, does the employee qualify for FFCRA leave to care for the child?

Barring eligibility via another qualifying reason, an employee in this circumstance would not be eligible for EPSL or EFMLA leave under the FFCRA because their child’s school is not closed due to COVID-19-related precautions. The employee had the option to send their child to school in-person, but chose to keep them home instead. Note, however, that if an employer knows that an employee has elected a virtual option due to their child's underlying health condition, the employer may want to follow its typical process to determine if the circumstances may be covered by the traditional federal Family and Medical Leave Act. One qualifying condition for traditional FMLA is that the employee is caring for an immediate family member with a serious health condition.

In the case of “hybrid” back-to-school plans involving a mixture of in-person and remote learning, an employee would be eligible for FFCRA paid leave on days that their child is barred from attending in-person class by the school as a part of the school’s COVID-19 precautionary plan.

6. What qualifies as a “federal, state, or local quarantine or isolation order”?

While neither the FFCRA nor the DOL’s implementing regulations explicitly define “federal, state, or local quarantine or isolation order”, the DOL’s preamble to its Temporary Rule takes a broad view of what such orders could be. The preamble states (emphasis added):

“The first reason for paid sick leave applies where an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order.  Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.”

7. Are employees able to use EPSL or EFMLA Leave intermittently? 

Under certain circumstances, employees may use EPSL on an intermittent basis. If an employee is still working at their regular worksite, DOL rules only allow an employee who qualifies for EPSL because of reason 5 (the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19) to take EPSL intermittently. An employee who qualifies for EPSL for one of the other qualifying reasons must take leave in full workday increments until their 80-hour allotment is exhausted or until they no longer qualify for its use, whichever comes first. This is because an employee who qualifies under one of these other EPSL qualifying reasons could pose an increased risk of COVID-19 transmission to others if working intermittently in the workplace.

If an employee is working remotely, however, they may take EPSL intermittently for any qualifying reason. For instance, if an employee is unable to work remotely in a given time period during normal work hours due to a qualifying reason, the employee and CAA may agree to an arrangement whereby the employee uses EPSL in hourly increments as needed. Or if an employee’s child’s school or place of care is closed for a week due to COVID-19, rather than taking FFCRA paid leave for the entire week, the employee and CAA may agree to an arrangement where the employee uses FFCRA leave only on Monday, Wednesday, and Friday, and works on Tuesday and Thursday while another household member cares for the child.

8. May employees use their remaining EPSL and EFMLA leave hours at any point beyond December 31, 2020?

No, employees may not use FFCRA leave beyond December 31, 2020. The FFCRA's paid leave provisions expire on that date, and any unused paid leave hours provided under the Act will be unusable after that date. As of this writing, there is no concrete indication from the federal government that the Act will be extended or renewed for 2021, although employees will still be able to access traditional FMLA leave as they normally would after the FFCRA’s expiration.

However, CAAs may create and administer their own paid leave policies to supplement or substitute for EPSL to continue incentivizing employees to self-isolate and prevent the spread of COVID-19. Such policies must comply with section 200.431(a), (b) of the Uniform Guidance, and are allowable where 1) the leave provided is reasonable, 2) the policies are written and approved by the CAA's board, 3) the costs are equitably allocated to all related activities, including federal awards, and 4) the accounting basis selected (cash or accrual) for costing leave is consistent with other forms of leave offered.

9. Should payroll taxes be withheld from EPSL and EFMLA leave wages?  

Even though they are tax-exempt entities, nonprofit CAAs must still withhold federal income taxes from the wages they pay their employees. This includes the employee and employer shares of Social Security (6.2%) and Medicare (1.45%) tax (together, these taxes are commonly referred to as FICA taxes). Employers should continue to withhold these payroll taxes from the FFCRA wages paid out to employees. However, when filing their quarterly federal employment tax returns (Form 941), employers may use the withheld payroll taxes to reimburse themselves for the appropriate amount of FFCRA tax credits.

10. How are employers reimbursed for the EPSL and EFMLA leave wages they have paid out?

Employers are eligible for IRS tax credits covering 100% of the EPSL and EFMLA leave wages they provide, plus the amount of any allocable qualified health plan expenses and the employer’s share of Medicare tax on such wages. Qualified health plan expenses are the amounts paid or incurred by the employer to maintain a group health plan during the period of leave.

Employers may claim their tax credits on their quarterly federal employment tax return (Form 941), or they can withhold the amount due in tax credits from their federal employment tax deposits. If an employer has paid out more in qualifying wages than they owe in federal employment taxes, they may request an advance payment of the credits from the IRS by submitting a Form 7200.

11. How should employers that are federal grant recipients apply the credits that they claim from the IRS?

Federal grant recipients that claim and receive credits for leave granted under the FFCRA should apply those credits in accordance with section 200.406 of the Uniform Guidance. In general, credits should be applied back to an employer’s federal grants in the same proportions that those personnel expenses were allocated. Credits may not, for example, be reclaimed as unrestricted funds by the employer.

This publication is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families. 

The contents of this publication are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.