Labor & Employment Law Daily Labor Department maps out Families First Coronavirus Response Act rights and obligations
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Monday, March 23, 2020

Labor Department maps out Families First Coronavirus Response Act rights and obligations

By Pamela Wolf, J.D.

Covered employers will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child-care leave that they paid, rather than deposit that amount with the IRS.

The Department of Labor has added to its collection of guidance documents about the COVID-19 outbreak (and other public health emergencies) and also announced, in conjunction with the Internal Revenue Service, that small and midsize employers can start to take advantage of two new refundable payroll tax credits that are designed to immediately and fully reimburse them for the cost of providing leave to their employees pursuant to the Families First Coronavirus Response Act (FFCRA), H.R. 6201, signed by President Trump on March 18, 2020.

The legislation will enable employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, according to the DOL.

Eligible employers under the FFCRA. The FFCRA provides paid sick leave and expanded family and medical leave for COVID-19-related reasons. It also creates refundable paid sick leave credit and paid child-care leave credit for eligible employers. Eligible employers are businesses and tax-exempt organizations with fewer than 500 employees that are required to provide emergency paid sick leave and emergency paid family and medical leave under the act. Those employers will be able to claim credits based on qualifying leave that they provide between the effective date of the new law and December 31, 2020. Equivalent credits are available to self-employed individuals based on similar circumstances.

Highlights of the FFCRA. The DOL highlighted these key aspects of the legislation:

  • For COVID-19 related reasons, employees will receive up to 80 hours of paid sick leave and expanded paid child care leave when employees’ children’s schools are closed or child care providers are unavailable.
  • Employers will receive 100 percent reimbursement for paid leave pursuant to the FFCRA.
  • Health insurance costs are also included in the credit.
  • Employers will face no payroll tax liability.
  • Self-employed individuals receive an equivalent credit.
  • Reimbursement will be quick and easy to obtain.
  • An immediate dollar-for-dollar tax offset against payroll taxes will be provided.
  • Where a refund is owed, the IRS will send the refund as quickly as possible.

Exemption. The FFCRA provides an exemption for employers with fewer than 50 employees, making them eligible for an exemption from the requirements to provide leave to care for a child whose school is closed or child care is unavailable in cases where the viability of the business is threatened.

Enforcement loosened. The FFCRA’s requirements are subject to 30-day non-enforcement period for good faith compliance efforts, according to the DOL.

Access to funds. To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not enough to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.

Employee paid leave rights. The Department of labor has added two new guidance documents to its COVID-19 resources, one of which maps out the new paid leave rights for employees:

  • Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to federal, state, or local government order, or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid family leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Notably, most federal employees are covered by Title II of the Family and Medical Leave Act, which was not amended by the FFCRA, and are therefore not covered by these expanded family and medical leave provisions (which amend Title I of the FMLA). However, federal employees covered by Title II of the FMLA are covered by the paid sick leave provision.

Employer paid leave obligations. The second new DOL guidance document addresses employers’ paid leave obligations under the FFCRA. The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.

Paid sick leave credit. The employers’ obligation to provide paid sick leave is capped, and correspondingly, so is the amount of the dollar-for-dollar sick leave credit that is available:

  • For an employee who is unable to work because of Coronavirus quarantine or self-quarantine or has Coronavirus symptoms and is seeking a medical diagnosis, eligible employers may receive a refundable sick leave credit for sick leave at the employee’s regular rate of pay, up to $511 per day and $5,110 in the aggregate, for a total of 10 days.
  • For an employee who is caring for someone with Coronavirus, or is caring for a child because the child’s school or child care facility is closed, or the child care provider is unavailable due to the Coronavirus, eligible employers may claim a credit for two-thirds of the employee’s regular rate of pay, up to $200 per day and $2,000 in the aggregate, for up to 10 days.
  • Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Child care leave credit. In addition to the sick leave credit, for an employee who is unable to work because of a need to care for a child whose school or child-care facility is closed or whose child care provider is unavailable due to the Coronavirus, eligible employers may receive a refundable child care leave credit. This credit is equal to two-thirds of the employee’s regular pay, capped at $200 per day or $10,000 in the aggregate. Up to 10 weeks of qualifying leave may be counted towards the child-care leave credit.

Eligible employers are entitled to an additional tax credit to be determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Retaining payroll taxes to cover leave costs. Employers must deposit federal taxes withheld from employees’ paychecks, along with the employers’ share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series). Under guidance that the IRS is expected to release next week, eligible employers that pay qualifying sick or child-care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child-care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include:

  • Withheld federal income taxes;
  • The employee share of Social Security and Medicare taxes; and
  • The employer share of Social Security and Medicare taxes with respect to all employees.

If there are not enough payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.

Examples. The DOL provided these examples:

  • Where an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
  • Where an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments, and file a request for an accelerated credit for the remaining $2,000.

Self-employed persons. Equivalent child-care leave and sick leave credit amounts are available to self-employed individuals under similar circumstances. These credits will be claimed on their income tax return and will reduce estimated tax payments.

Further information about these credits and other relief is available at Coronavirus Tax Relief on IRS.gov.

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