COVID-19 Paid Sick Time: What Your Practice Must Do to Avoid Penalties

Providing your employees with COVID-19 paid sick time and expanded leave is not optional under the newly implemented Family’s First Coronavirus Response Act (FFCRA). Find out what you must do now to avoid penalties.

Effective April 1, 2020, the FFCRA requires certain employers to provide their employees with COVID-19 paid sick time and expanded family and medical leave for specified reasons related to COVID-19. While the COVID-19 paid sick time rule is temporary—set to expire December 31, 2020—it isn’t optional.

The U.S. Department of Labor (DOL) can and will enforce FFCRA compliance and penalize employers in violation. But like most compliance topics, FFCRA compliance is somewhat complicated.

Is Your Practice Required to Provide COVID-19 Paid Sick Time Under FFCRA?

As with many regulatory changes, the qualifying rules differ based on the size of practice. The provisions for COVID-19 paid sick time and expanded family and medical leave provision of FFCRA apply to certain public employers, and private employers with fewer than 500 employees. If you have less than 50 employees, you may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability. You must demonstrate that the leave requirements would jeopardize the viability of your practice.

See Who’s Eligible for COVID-19 Paid Sick Time Under FFRCA

All employees of covered employers are eligible for two weeks of full or partial COVID-19 paid sick time, and those who have been employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances. The absence must be related to COVID-19 and fall within 6 specific categories. There are also different pay rates for employees depending on their hourly status and the reason for the COVID-19 related time off. Here is a breakdown of how much pay you are required to provide employees under differing circumstances:

Full pay: You are required to provide 80 hours of sick leave (prorated for part time employees), at the employee’s current rate of pay, up to $511 per employee/per day for 10 days (total of $5,110). This applies to employees who are:

Ordered by the government to quarantine
Advised by a medical professional to self-quarantine
Experiencing COVID-19 symptoms and are seeking a medical diagnosis

Two-thirds pay: You are required to provide 80 hours of sick leave (prorated for part-time employees), at two/thirds of the employee’s regular rate of pay, up to $200/day ($2,000 total). This applies to employees who are:

Caring for an individual in quarantine (by government order or self-quarantine)
Caring for a child whose school or place of care has closed
Experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury

Expanded leave at two-thirds pay: You are required to provide up to 12 weeks of paid sick leave and expanded family and medical leave, paid at two/thirds of the employee’s regular rate of pay, up to $200 daily and $12,000 total. This applies to employees who are:

Caring for a child whose school or place of care has closed

Relief: According to the DOL, every dollar you pay—including health insurance premium costs—will be covered in full by a refundable tax credit.

Special Rules for Healthcare Providers, Emergency Responders

Under the FFCRA, you may elect to exclude an employee who is a healthcare provider or emergency responder from eligibility for the leave provided under the Act. The definitions are broad, and according to the DOL these employees include:

Health care provider: Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
Emergency responder: An employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.

The exclusions require that the individuals would be necessary in caring for others during heightened states of the COVID-19 pandemic. The DOL cautions you to use the exclusions judiciously. Note: For complete clarification, see the DOL guidance here.

Know Your Requirements Under FFCRA

There are several things you can do to prepare your practice for compliance and things you should keep in mind.

You must make employees aware of FFCRA requirements.
You can’t terminate any employee for utilizing the FFCRA benefits.
Employees must provide necessary documentation when they request the leave.
You can still lay off an employee due to lack of work.
These benefits don’t carry over beyond December 31, 2020. So if you terminate the employee for a different reason, they don’t get a payout.

Important: What you say and do during this turbulent, emotionally charged time can leave your practice at great risk (i.e. understaffed, discrimination allegations, cashflow problems, FFCRA violations, etc.). This is where healthcare and employment attorney, Kelly Holden, Esq., can help.

During her online training, “FFCRA: Protect Your Practice from COVID-19 School Closure Paid Time Off Lawsuits,” Kelly will provide you with plain-English advice on how to correctly respond to the complex COVID-19 related employee time off situations your practice will be faced with. You’ll walk away from this online training with confidence that you’re complying with FFCRA employee time-off rules.