Exempt? Pinpoint Your FFCRA Compensation Obligations

QUESTION: We are trying to figure out when and if we need to pay employees who are unable to come to work due to coronavirus related childcare and school issues. While we want to be compassionate and understand the challenges staff are facing, it’s very hard for us to operate when too many employees are out and we are compensating them. We keep hearing that we may or may not have to follow the applicable laws. How do we know if we are exempt from FFCRA and FMLA?

Question from White Plains, NY subscriber. FFCRA compensation obligations.

ANSWER: This is a tough question with no straightforward answer. Instead, you need to look at many factors to determine if you need to provide paid COVID-19-related childcare and school-related leave. These steps will get you the solution. FFCRA compensation obligations.

First, there are three laws that govern your responsibilities:

- The Families First Coronavirus Response Act (FFCRA) is the most applicable regulation that applies to the current COVID-19 concerns related to schools and childcare. This act is still new. It was passed in March and became effective April 1. It is set to expire at the end of the year and may get extended.
- Under the FFCRA there is the Emergency Family and Medical Leave Expansion Act (EFMLEA) which allows employees to take off work and still be paid. If they’re having childcare issues caused by COVID-19, the pay can be up to $10,000 per employee. The FFCRA also expands sick leave due to COVID-19 coverage under the Emergency Paid Sick Leave (EPSLA), which is a paid leave up to either $2,000 or $5,100 per employee.
- There is also the existing Family Medical Leave Act (FMLA).

Next, look at your size:

- Small: The FFCRA applies to any employer, that has less than 50 employees. If you have less than 50, you can take a hardship exemption.
  - The Department of Labor (DOL) created the exemption for employers who would have endured too much stress from having employees out and additionally paying them for being out. If you are under 50 staff, you can basically diem yourself exempt from this act. You don’t have to get permission from the DOL or send anything. You just document it and say, “We are exempt from the act.”
- Mid-size: But if you have more than 50, EFMLA potentially applies to you, unless another exemption applies of being a health care provider or a first responder. If you have not had to deal with this in the Spring and didn’t declare yourself exempt either as a health care provider or small employer, you may seriously want to consider that at this point.

Then, consider the staff member’s length of employment:

- The FFCRA applies to any employee who’s been employed at least 30 days, so it’s going to apply to many more employees than the regular FMLA. The employee can substitute paid leave, but unlike under the FMLA, you cannot force them to do that. The pay is at two thirds of their regular rate of pay for 12-weeks of job protected leave. You cannot replace their position during that 12-week period.
- The existing FMLA requires coverage when an employee has been employed for 12 months consecutively, and worked 150 hours. The initial 10 days is unpaid; The remainder is paid up to $10,000 per employee with a maximum of $200 per day. This is leave taken because the employee can’t work because the child’s school or daycare is closed. So this is directly related to someone who’s school shuts down, or they’re doing remote learning.

Check your entity type. The DOL exempts first responders and healthcare providers from provisions of the FFCRA.

- Healthcare providers: The definition is broad, no paid leave is required when your entity is exempt. The exemption includes doctor’s offices, healthcare centers, hospitals, medical schools, health departments, nursing facilities, retirement, facilities, nursing homes, home health care providers and pharmacies.
- First responders include military, national guard, law enforcement, correctional institution, EMT, paramedics, 911 operators, and child welfare workers.

Count all staff as exempt based on the entity. The healthcare provider exemption was recently re-examined. There was a decision from the federal court in New York who said the definition of a healthcare provider that’s set out by the regulations under the FFCRA focuses solely on the identity of the employer; the employee’s skills, roles, duties, and capabilities don’t count. That means as a healthcare provider, all of your employees are exempt. If someone’s working for you in billing, they count under the location exemption even though they are not a healthcare provider providing clinical or direct hands-on care.
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Test your skills. Look at the below scenarios and ask yourself, “Is the employer is obligated to pay anything?

- A healthcare business with less than 50 staff and four states combined with no manpower each time a bunch of staff calls in unable to work.
  - Answer: No, since you have less than 50 employees and you’re health care providers, you’re going to be exempt from the FFCRA. The only thing that you would have to pay is if you do offer some type of vacation or sick leave. Look at your existing policies and if you don’t have any paid sick leave, then there’s no obligation to pay the employees.
- A childcare agency with residential treatment facilities that require full-time – 365, 24, 7 -care.
  - Answer: You fit within the FFCRA healthcare provider exemption and do not have to provide paid leave to individuals.

For more strategies on how to correctly respond to the complex COVID-19 related employee time off situations your practice will be faced with, healthcare and employment attorney, Kelly Holden, Esq., can help. By attending her online training, “FFCRA: Protect Your Practice from COVID-19 School Closure Paid Time Off Lawsuits,” you’ll walk away from with the confidence that you’re complying with FFCRA employee time-off rules.FFCRA compensation obligations.