NOTE: The requirement to provide paid Emergency Paid Sick Leave and the Expanded Family Medical Leave under the Families First Coronavirus Response Act (FFCRA) of 2020 expired on Dec. 31, 2020. This web page specifically includes FFCRA-related content posted on the League’s website throughout 2020. Please note, these FAQs have been renumbered.
Q24. Can employees who are exempt from the FLSA’s overtime requirements under the executive, administrative and professional exemptions perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?
A1. The 2020 law (H.R. 6201) impacted employers in two key respects: it required Emergency Family and Medical Leave Act (FMLA) leave to be provided to qualifying employees and required that Emergency Paid Sick Leave be offered to an employee who is unable to work due to specific impacts of COVID-19. The law took effect on April 1, 2020 and expired on Dec. 31, 2020, as the law was meant to specifically address concerns around COVID-19.
NOTE: Congress passed a $900 billion pandemic relief package on Dec. 21, 2020, that went to President Donald Trump for his signature, which he signed on Dec. 27, 2020. The COVID-19 sick leave and Public Health Emergency leave provisions from FFCRA were not extended in the package — thus the mandatory FFCRA leave expired at the end of 2020. The following content is from 2020:
On Sept. 11, 2020, the DOL clarified FFCRA paid leave is only available if there is available work by the employer. Thus, an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform (such as in the case where a city closed down the worksite — temporarily or permanently).
It is important to note, regardless of how much accrued leave an employee has through their employer, eligible employees can take any and all Public Health Emergency and Emergency Paid Sick Leaves they are entitled to (as noted below).
- View a chart of paid leave and wage loss benefits for COVID-19 under FFCRA (Note: Please use the chart in conjunction with more detailed information provided below.)
- View decision trees to work through FFCRA leaves from Gallagher consultants (pdf)
- View the DOL’s quick benefits tips to help determine how much FFCRA paid leave is available to your employees (pdf)
The DOL Sept. 11, 2020 guidance noted required documentation (see sample forms provided under Public Health Emergency Leave and Emergency Paid Sick leave below) supporting the need for the leaves need not be given prior to taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable. As an example, if the need for expanded family and medical leave was not foreseeable — for instance, if an employee learns of the school’s closure on Tuesday after reporting for work — the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.
Emergency Family and Medical Leave (FMLA) Expansion Act
The Public Health Emergency Leave is an amendment to the FMLA, providing a new category for eligible full-time and part-time employees. All political subdivisions of the state, regardless of size, must comply. Employers may, however, exclude employees who are health care providers or emergency responders. This eligibility for a specific circumstance is a notable change from the “traditional” FMLA. Under traditional FMLA, generally speaking, provisions do not apply to employers with fewer than 50 employees, whereas Public Health Emergency Leave applies to all cities.
Question #49 of the DOL’s FFCRA FAQs clarifies that the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week affects the amount of pay the employee is eligible to receive.
This portion of the bill amends the FMLA by granting up to 12 weeks of job-protected leave to employees to care for children because school has been closed or they are without child care, due to a public health emergency. While the first two weeks of this up to 12 week benefit are unpaid, the remaining 10 weeks under this benefit would be paid at two-thirds the employee’s regular rate of pay when an employee 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. (Refer to FAQ #Q3 for information on the interplay of Emergency Paid Sick Leave with Public Health Emergency Leave.) A “public health emergency” is defined to mean “an emergency with respect to COVID-19 declared by a federal, state, or local authority.” Thus, the Public Health Emergency Leave does not increase the total number of FMLA weeks an employee has available; it is still 12 weeks, but the act simply adds a new category of leave for employees to access. Recall only the expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons, is paid leave when such leave exceeds 10 days.
Employees who have been employed for at least 30 calendar days are eligible for this specific expanded family medical leave. The April 1 DOL guidance reiterates this different eligibility criteria is solely for the Public Health Emergency Leave, reiterating “not all employees who are eligible to take expanded family and medical leave will be eligible to take FMLA leave for other reasons.” An employee is considered to have been employed for at least 30 calendar days if an employee has been on the city’s payroll for the 30 calendar days immediately prior to the day the leave begins. The DOL FFCRA FAQs provide the following example to illustrate the 30 days: If an employee wants to take leave on April 1, 2020, that employee would need to have been on the city’s payroll as of March 2, 2020. In the event a city has a temporary employee who is subsequently hired as a full-time employee, the city will want to count days the employee worked as a temporary employee toward the 30-day eligibility period.
In the April 1 DOL guidance, eligibility for Public Health Emergency Leave was expanded to employees who were laid off or otherwise terminated on or after March 1, 2020, provided:
- The employer rehires or otherwise reemploys the employee on or before Dec. 31, 2020, and
- The employee has been on the city’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or terminated.
The act provides leave for employees who are unable to work (or telework) because they need to care for a son or daughter whose:
- School or place of care has been closed, or
- Child care provider is unavailable due to a public health emergency.
A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. To count the hours worked by a part time employee, the DOL FFCRA FAQs state an employer will calculate hours of leave based on the number of hours the employee is normally scheduled to work. In other words, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period. However, if the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded Family and Medical Leave for the same number of hours per day up to 10 weeks after that.
FAQ #5 of the DOL FFCRA FAQs provides further guidance stating, if this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, the April 1 DOL guidance states an employer will use the average number of hours per workday the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.
Typically, an employer is not required to provide paid leave under traditional FMLA; however, for Public Health Emergency Leave, only the first two weeks of such leave may be unpaid. The April 1 DOL guidance affirms that the unpaid period for employees who work regular Monday through Friday schedules would be 10 days because that is the number of days they would work in two weeks. However, the following 10 weeks must be paid at no less than two-thirds the regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. To reiterate, this specific type of leave is taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
Employees may elect to substitute any accrued vacation leave or sick leave for the initial two weeks of unpaid leave, but an employer may not require an employee to substitute any such leave. In some cases, such as when an employee is caring for their child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 related reasons, employees may elect to overlap the initial two weeks of unpaid leave with two weeks covered by the new Emergency Paid Sick Leave, so the cap would be subject to $200 per day or $12,000 for the 12 weeks when the employee is on leave to care for their child.
The Public Health Emergency Leave requires an employer to pay an employee, using the regular rate of pay, for hours the employee would have been normally scheduled to work. For purposes of the FFCRA, the regular rate of pay is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave begins. The DOL, in its April 1 guidance, notes such an average should be weighted by the number of hours worked each workweek and provides an example on page 32 of the guidance.
For some employees, the regular rate of pay may include overtime. Because there are circumstances when both the Public Health Emergency Leave and Emergency Paid Sick Leave would be in play (such as for when school or child care is closed due to COVID-19 and the employee needs to care for children), it’s important to be mindful of the daily and aggregate caps. Recall under the Emergency Paid Sick Leave Act, sick leave may be paid only up to 80 hours over a two-week period. The DOL FFCRA FAQs note in FAQ #6, as an example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, and states in any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. However, that pay under either does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.
The April 1 DOL guidance notes FFCRA regulations do not require employers to provide employees requesting to use Public Health Emergency Leave with notices of eligibility, rights and responsibilities, or a written designation that leave use counts against employee’s FMLA leave allowances. As a best practice, cities may want to develop notices for this leave to comport with their “traditional” FMLA practices.
The DOL FAQs provided guidance (in questions 15-16) on what documentation employers can use to substantiate the need for Public Health Emergency Leave, including a notice of closure or unavailability from a child’s school or child care provider, such as a notice posted on a government, school or day care website, as well as a notice published in a newspaper or e-mailed to the employee from a school official or child care provider.
On June 26, 2020, the DOL issued a Field Assistance Bulletin (2020-4) clarifying eligibility for paid sick or expanded FMLA under the FFCRA based on the closure of summer camps, summer enrichment programs, or other summer programs. The Field Assistance Bulletin states, “An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements described above [for school closures] and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2).” There must be some indication that the child would have attended the summer program had it not closed in response to COVID-19.
There is an exception to the job protection provisions for employers with fewer than 25 employees if the employee’s position does not exist after Public Health Emergency Leave due to an economic downturn or other operating conditions that affect employment caused by the COVID-19 pandemic, but specific conditions must be met.
See page 54 of the April 1 DOL guidance for these requirements. Additionally, the “key” employee exception under “traditional” FMLA is applicable to leave taken under Public Health Emergency Leave. See information beginning on page 11 of the League’s FMLA memo for additional details on key employees.
The DOL, in its April 1 guidance, notes for leave taken under “traditional” FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s own spouse, son or daughter, or parent with a serious health condition related to COIVD-19, the “traditional” FMLA certification requirements still apply. However, cities will want to be mindful that during the COVID-19 pandemic, medical documentation from providers may be difficult to obtain.
Employers of health care providers or emergency responders may elect to exclude such employees from this leave. (Refer to FAQ #Q25 below for additional information.)
In FAQ #15 of the FFCRA FAQs, the DOL notes regardless of whether an employer grants or denies a request for Public Health Emergency Leave certain information must be documented. To that end, the League has provided some sample model forms to gather the needed information.
- View LMC model form: Employee Request for Public Health Emergency Leave (doc)
- View LMC model form: Designation Notice for Public Health Emergency Leave (doc)
- View checklist by Gallagher Consulting on FFCRA Leave and Employer Recordkeeping Requirements (pdf)
Emergency Paid Sick Leave Act
Subject to a few exceptions, all public agencies must provide their eligible employees with Emergency Paid Sick Leave. Further, section 5110 of the FFCRA states the term “covered employer” in the emergency sick leave provisions apply to” public agency[ies] or any other entity that is not a private entity or individual, employs one or more employees.”
This provision of the act requires applicable employers (like cities) to provide employees with a maximum of two weeks of paid sick leave (paid at the full regular rate) for employees who are unable to work or telework because they need to:
- Quarantine. Documentation an employee could provide to the city in support of paid sick leave would include the name of the government entity issuing the quarantine or isolation the employee is subject to (in this case Governor Walz’s Stay at Home Executive Order) or the name of the health care provider who advised the employee to self-quarantine for COVID-19 related reasons. In the April 1 DOL guidance, it was clarified that if the employer has closed, and there is no available work for the employee, then Emergency Paid Sick Leave would not be appropriate (because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order). In those cases, an employee would file for unemployment since there no work available. The guidance further states, if an employee is subject to a quarantine or isolation order, but the employer permits the employee to telework and there are no extenuating circumstances preventing the employee from performing that work, that employee is ineligible for Emergency Paid Sick Leave (due to the fact they are teleworking).
- Seek a diagnosis or preventive care for coronavirus. The April 1 DOL guidance states Emergency Paid Sick Leave for this reason is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis (i.e., the time spent making, waiting for, or attending an appointment for a test for COVID-19), but specifies the employee may not take Emergency Paid Sick Leave to self-quarantine without seeking a medical diagnosis. The guidance further notes in the case of an employee who exhibited COVID-19 symptoms and seeks medical advice but is told he or she does not meet the criteria for testing and is advised to self-quarantine, that employee is generally eligible for Emergency Paid Sick Leave.
In these circumstances, there is a cap of $511/day or $5,110 total over the entire two-week paid sick leave period.
However, two-thirds of the employee’s regular rate must be paid to:
- Care for a family member who has been quarantined or advised by a health care provider to self-quarantine. The April 1 DOL guidance states the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person due to the quarantine. Documentation an employee would provide to the city in support of paid sick leave for this situation could include the name of the government entity that issued the quarantine or isolation the employee is subject to (in this case Governor Walz’s Stay at Home Executive Order), or the name of the health care provider who advised the employee to self-quarantine for COVID-19 related reasons.
- Care for a child whose school has closed or whose child care provider is unavailable due to the coronavirus. The April 1 DOL guidance clarifies if an employer does not have available work (e.g., if the place of employment is closed and the employee cannot telework), an employee may not take paid sick leave. In that case, the employee could file for unemployment. The guidance further clarifies Emergency Paid Sick Leave is only for the period when the employee needs to, and actually is, caring for his or her child. Stating, “generally, an employee does not need to take Emergency Paid Sick Leave if another suitable individual – such as a co-parent, co-guardian, or the usual child care provider – is available to provide the care for the employee’s child needs.” Also, in the case of a 15- to 17-year old child, the employee must identify “special circumstances” requiring the employee to provide care. Documentation an employee would provide to the city in support of this Emergency Paid Sick Leave situation would include: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
- Tend to any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services (as of the date of these FAQs, this situation is not in play).
In these circumstances, there is a cap of $200/day or $2,000 total over the entire two-week paid sick leave period.
In the event your city has opted to provide any of these leaves to your employees, the authority for sick leave and other related benefits should satisfy the public purpose doctrine for these expenditures. Minnesota courts have held that the “public purpose” doctrine should be “broadly construed to comport with the changing conditions of modern life.” Short Co. v. City of Minneapolis, 269 N.W.2d 331 (Minn. 1978). In addition, remember that the state auditor emphasizes the importance of governing bodies to accurately record pay and benefit decisions in your meeting minutes.
Emergency Paid Sick Leave is a benefit for all eligible employees for up to 80 hours of paid sick time, regardless of the employee’s length of employment. Full-time employees are entitled to two weeks (80 hours) of paid sick time and part-time employees (defined under question #49 of the DOL’s FFCRA FAQs as an employee who is normally scheduled to work fewer than 40 hours per week), are entitled to paid sick time based on the number of hours equal to the average number of hours that the employee normally works in a two-week period.
In the April 1 DOL guidance, employers are directed to use the daily average a variable scheduled employee works to compute the two-week average. Thus, employers will want to take the number of hours the variable scheduled employee was scheduled per calendar day, averaged over the past six-month period prior to the date on which the leave begins. Alternatively, an employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period. The calculation will yield Emergency Paid Sick Leave for a variable employee equal to 14 times the average number of hours the employee was scheduled to work per calendar day (including any vacation, PTO, or sick leave hours the employee used) over the six-month period ending on the date on which the employee takes paid sick leave.
The Department of Labor’s April 1 guidance states if this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
Any unused paid leave granted by the act does not carry over into 2021.
Employers of health care providers or emergency responders may elect to exclude such employees from this leave. (Refer to FAQ #Q13 for additional information.)
In FAQ #15 of the FFCRA FAQs, the DOL notes regardless of whether an employer grants or denies a request for Emergency Paid Sick Leave certain information must be documented. To that end, the League has provided some sample model forms to gather the needed information.
Health insurance and FFCRA
In FAQ #30 of the DOL’s FFCRA FAQs, it is stated that if an employer provides group coverage that an employee using FFCRA leave has elected, that employee is entitled to continued group health coverage during the expanded family and medical leave and/or Emergency Paid Sick leave on the same terms as if the employee continued to work.
As passed, the Families First Coronavirus Response Act implements significant mandates on local governments as employers to provide expanded leave to employees, but unfortunately, language in the bill expressly prohibits government employers from receiving the tax credits to offset the costs of providing such leave.
A concerted effort by the National League of Cities and the League of Minnesota Cities to amend this language in the more recently passed CARES Act (third COVID-19 stimulus package) was not successful. As a result, the language in the Families First Coronavirus Response Act (PL 116-127) remains and governmental employers are prohibited from receiving any benefit of the payroll tax credits for providing paid sick and paid emergency family leave. We are aware of efforts at the federal level to continue to attempt to fix this issue should there be any further COVID-19 stimulus packages. Because this is in flux, might be a good idea to start tracking as of April 1 any paid leave benefits granted under this act. Some cities are considering coding any leave under this act as a specific code in their payroll systems so they can more easily generate a report if needed down the line. For further information about the tax credits available to private employers, please visit the IRS’ Coronavirus Tax Relief page.
- Government employers are not eligible for the credit for qualified sick and family leave wages. (See Form 941 instructions, page 9)
- Government employers are not liable for the employer share of social security tax on qualified sick leave wages.
- FFCRA wages may be eligible expenses for reimbursement using CARES Act funds. (Refer to Coronavirus Relief Act Guidance Updated June 30, 2020 at the top of page 4)
- See the text of the Families First Coronavirus Response Act (pdf)
- Get additional information on the leave provisions from the U.S. House of Representatives (pdf)
- Read FAQs from DOL about the FFCRA
- Get more information about FFCRA from the DOL website
2020 Form W-2 reporting FFCRA wages
The FFCRA went into effect on April 2, 2020 and was scheduled to sunset on Dec. 31, 2020. Two divisions of the act apply to local governments: The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
Lisa Sova, League of Minnesota Cities Assistant Finance Director — Outreach specifically checked in with the IRS to inquire if cities are subject to reporting FFCRA on W-2 forms. The response was that employers with one or more employee are considered “covered employers” by statute and the notice applies to all covered employers.
The IRS provides guidance on the reporting requirements of FFCRA wages either on Form W-2 or on a separate statement. Employers will be required to report all FFCRA payments by leave type when preparing 2020 W-2 forms.
Employers must separately state the total amount of:
- Qualified sick leave wages.
- Qualified family leave wages.
- Emergency Family and Medical Leave wages.
There are two options for reporting:
- Box 14 on the 2020 Form W-2; or
- A separate statement provided to employees with the 2020 Form W-2.
The following model language (modified as necessary) may be used:
“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:
- Sick leave wages subject to the $511 per day limit because of care you required.
- Sick leave wages subject to the $200 per day limit because of care you provided to another.
- Emergency family leave wages.
“If you have self-employment income in addition to wages paid by your employer, and you intend to claim any qualified sick leave or qualified family leave equivalent credits, you must report the qualified sick leave or qualified family leave wages on Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals, included with your income tax return and reduce (but not below zero) any qualified sick leave or qualified family leave equivalent credits by the amount of these qualified leave wages. If you have self-employment income, you should refer to the instructions for your individual income tax return for more information.”
If a separate statement is provided and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 provided to the employee, and if the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.
Q2. With the Stay at Home order by Gov. Walz, is that deemed a quarantine or isolation that allows employees to access Emergency Paid Sick Leave?
A2. Very likely, but the city will want to make an initial determination whether there is available work for the employee. Essentially, an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking.
Specifically, in the April 1 DOL guidance, it was clarified that if an employer has closed, and there is no available work for the employee, then Emergency Paid Sick Leave would not be appropriate (because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order). In those cases, an employee would file for unemployment due to no available work. The guidance further states, if an employee is subject to a quarantine or isolation order, but the employer permits the employee to telework, and there are no extenuating circumstances preventing the employee from performing that work, that employee is ineligible for Emergency Paid Sick Leave (due to that fact they are working via teleworking).
For reference, in the April 1 DOL guidance, there is language stating, “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.” Essentially, an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking.
Q3. Can you please address how Emergency Paid Sick Leave might overlap with Public Health Emergency Leave?
A3. The Public Health Emergency Leave only applies if an employee is unable to work (or telework) due to the need to care for a child if the child’s school, or child care provider is closed due to a public health emergency (like that of COVID-19). If that situation is in play for your employee and the employee has worked for you for the eligibility criteria outlined in question #13 (whereas the Emergency Paid Sick Leave is immediately available to employees), then the employee is eligible for up to 12 weeks of FMLA leave (assuming they have not already previously used any FML time within your defined 12-month period). Ten of those weeks will be paid at two-thirds the rate of the employee’s regular pay, and the first two weeks of that leave are unpaid. Employee can elect to use their accrued employer provided leave balances for the first two weeks (which arguably may be paid at the employee’s full rate of pay), can elect to use up to 80 hours of Emergency Paid Leave or take those two weeks as unpaid. For the case of an employee caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, they would be eligible for up to two weeks of Emergency Paid Sick Leave paid at two-thirds their regular rate of pay, up to a cap of $200/day ($10,000 in the aggregate, or no more than $12,000 in the aggregate when combined with two weeks of the Emergency Paid Sick Leave).
In the event an employee has exhausted his or her 12 weeks of “traditional” FMLA or the 12 weeks of Public Health Emergency Leave, (and assuming the employee has not already used the two weeks of Emergency Paid Sick Leave) the April 1 DOL guidance reiterates the employee may still be eligible for the two weeks of Emergency Paid Leave for a COVID-19 qualifying reason.
Q4. For the Emergency Paid Sick Leave, the up to 80 hours is regardless of if the employee has accrued time available, correct?
A4. Yes, the Emergency Paid Sick Leave is in addition to any accrued banks of leave the employee may currently possess. Further, the act includes an express provision that an employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.
Q5. Can an employee supplement with their own accrued leave to receive a full check in cases where they are receiving two-thirds pay under Public Health Emergency Leave or Emergency Paid Sick Leave?
A5. We tend to think so, but this election is at the employee’s choice and the employer cannot require an employee to supplement the FFCRA leaves. In question #32 of earlier DOL guidance, the DOL stated, “Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.” However, it is important to note, the Act currently expressly prohibits government employers from receiving the tax credits to offset the costs of providing such leave. (See FAQ #Q1 above for additional information).
The DOL offers guidance specifically on supplementing Public Health Emergency Leave in their April 1 guidance, noting an employee may take the first two weeks of Public Health Emergency Leave as unpaid, elect to take Emergency Paid Sick Leave at two-thirds the employee’s regular rate of pay, or use his or her accrued leave through the employer. After the first two weeks of leave, Public Health Emergency Leave is paid at two-thirds an eligible employee’s regular rate of pay, up to $200 per day. Because this period of Public Health Emergency Leave is paid, the DOL notes on page 110 of its April 1 guidance, the “traditional” FMLA provision for substitution of the employee’s accrued paid leave is inapplicable, and neither the eligible employee nor the employer may require the substitution of paid leave. However, cities and eligible employees may agree, to have paid leave supplement pay under the Public Health Emergency Leave so that the Employee receives the full amount of his or her normal pay.
Q6. Can an employee access Public Health Emergency Leave or Emergency Paid Sick Leave for care of a grandchild?
A6. Possibly, if the employee was considered “in loco parentis” for the child. In DOL’s FFCRA FAQs, the definition of son or daughter includes an employee’s biological, adopted, or foster child, stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. For additional information regarding “in loco parentis” please refer to Fact Sheet #28B where it states, “In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 or 18 years of age or older and incapable of self-care because of a mental or physical disability. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA, as long as the relative satisfies the in loco parentis requirements.”
In the April 1 DOL guidance, under both Public Health Emergency and Emergency Paid Sick Leaves, the definition of child is mirrored and includes children under 18 years of age as well as children age 18 or older who are incapable of self-care because of a mental or physical disability. See also FAQ #Q21 on this web page.
A7. Generally, yes, provided the employer and employee are in agreement. The DOL’s April 1 guidance, reiterates this with no leave under the FFCRA may be taken intermittently without agreement by both the employer and employee. In earlier DOL Q&As, the Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs. The Department notes that it is supportive of such voluntary arrangements that combine telework and intermittent leave. In the April 1 DOL guidance, it is noted that providing this intermittent leave flexibility during the COVID-19 pandemic should not be construed as undermining the employee’s exempt status under the FLSA. On Sept. 11, the DOL affirmed that where intermittent FFCRA leave is permitted, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave
While the April 1 DOL guidance noted a written agreement outlining both parties’ agreement is not required, it is noted there needs to be clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both. Further, where an employer and employee agree to the intermittent leave, there needs to be agreement on the increments of time in which leave may be taken. Thus, cities may want to talk with their legal counsel on how best to document any intermittent arrangement.
The Sept. 11 DOL guidance also noted employer approval would not be required for employees taking FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis. The DOL clarified, in an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (e.g., the school opened the next day), and then take leave again when a new qualifying reason arises (e.g., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.
However, the DOL notes, the above scenario differs from a scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under this specific circumstance, the employee’s FFCRA leave is intermittent and would indeed require his or her employer’s agreement.
Q8. If we have an employee on 14-day quarantine due to possible exposure, can they use the 80-hour FFCRA leave? Or is it better to use paid administrative leave?
A8. As of April 1 and through Dec. 31, 2020, if the employee has been advised by a health care provider to self-quarantine related to COVID-19, then that is a qualifying reason for up to 80 hours of Emergency Paid Sick Leave at their regular rate, up to $511 per day and $5,110 in the aggregate. Prior to April 1, the city would follow its typical paid leave policies.
Q9. If schools are not open in person, but for distance learning, does the FFCRA cover employees who want or need to stay home with their children during the distance learning?
A9. On August 27, 2020, the DOL provided FAQs noting that eligible employees can take paid leave under the FFCRA on days when the child is not permitted to attend school in person and must instead engage in distance learning, provided the employee needs the leave to actually care for the child during that time and only if no other suitable person is available for the care. However, FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If an employee’s child is home not because his or her school is closed, but because the employee chose for the child to remain home, the employee is not entitled to FFCRA paid leave. However, if, because of COVID-19, the employee’s child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child. See also FAQ #Q1 for additional information on FFCRA and related sample model forms.
Q10. Are Public Health Emergency Leave and Emergency Paid Sick Leave paid benefits subject to Public Employees Retirement Association (PERA)?
A10. League staff spoke with PERA on March 26 and confirmed that both the emergency FMLA and Paid Sick Leave are PERA reportable. Further, pay issued under FFCRA is eligible for pension deductions as long as it is associated with a specific pay period (i.e., bi-weekly, etc.). Visit PERA’s COVID-19 Q&A web page.
A11. The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Generally speaking, leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.
If a city finds itself in a position where an employee expresses fears working due to COVID-19 concerns, a conversation with the city attorney is vital to balance employee rights and city business needs. Generally speaking, a city will want to engage in an interactive process to better understand the employee’s specific concerns, and as with any accommodation request, the EEOC notes in question D.6 of its Guidance on COVID-19 and the Americans with Disabilities Act (ADA) employers may: ask questions to determine whether the condition is a disability; how the disability creates a limitation, how the requested accommodation will effectively address the limitation, whether another form of accommodation could effectively address the issue; and how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties). For further information, refer to Employment Accommodations During COVID-19.
A12. Cities will want to post this notice of the FFCRA requirements by March 31 in a conspicuous place at your premises, but employers can satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an employee information internal or external website. You may notice, there are two posters on the DOL workplace posters website; cities will want to post and share the non-federal employees, “Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act” (WHD1422 REV 03/20) poster. Cities are not required to post this notice in multiple languages, but the Department of Labor (Department) has issued a Spanish language version of the poster. Additionally, the Department of Labor offers some notice FAQs you may want to read.
Notably, if have new hires you must convey this notice to them either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.
Q13. Can you tell me more about the FFCRA health care providers and medical responders exemptions and why the exemptions exist?
A13. Employers of health care providers or emergency responders may elect to exclude such employees from the Public Health Emergency and Emergency Paid Sick Leaves. In question #57 of the DOL’s FFCRA FAQs, the DOL defines emergency responders who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, as 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. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. (Refer to additional content regarding the health care providers and emergency responders exclusion under Public Health Emergency Leave section.)
In the April 1 DOL guidance, this exclusion was explained as a balance struck by the FFCRA. “On the one hand, the FFCRA provides for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19. On the other hand, providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders. The FFCRA should be read to complement — and not detract from — the work being done on the front lines to treat COVID-19 patients, prevent the spread of COVID-19, and simultaneously keep Americans safe and with access to essential services. Therefore, the Department interprets ‘emergency responder’ broadly.”
Q14. Is it an option to exclude Emergency Responders from the Public Health Emergency Leave, but not the Emergency Paid Sick Leave, or vice versa?
A14. Yes. In FAQ #57 of the FFCRA FAQs, the DOL encourages, to minimize the spread of the virus associated with COVID-19, employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA. Noting, as an example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness. Previously, the League consulted with a local benefits attorney and understood that given the fact that the two types of leave are governed by different laws and each law separately gives an employer the ability to exclude emergency responders, it seemed like the answer was yes, a city could exclude emergency responders from one leave and not the other, or exclude emergency responders from both leaves. Now it is confirmed by the DOL that a city could exclude emergency responders from being eligible for Public Health Emergency Leave but allow them to receive Emergency Paid Sick Leave.
In the event an emergency responder contracts COVID-19 and falls under the presumption for COVID-19 workers’ compensation claims, the DOL notes in FFCRA FAQ #76 that such employee would not generally be eligible for Emergency Paid Sick Leave (even if the city did not choose to exclude emergency responders from the EPSL benefit) unless the employee was able to return to light duty before taking leave. The DOL notes, “If you receive workers’ compensation or temporary disability benefits because you are unable to work, you may not take paid sick leave or expanded family and medical leave. However, if you were able to return to light duty and a qualifying reason prevents you from working, you may take paid sick leave or expanded family and medical leave, as the situation warrants.”
Q15. If we exempt health care workers or emergency responders from the leave granted under the FFCRA, can they take other kinds of leave?
A15. Yes, an employer’s exercise of this option does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies. Therefore, the city may be required to grant other forms of paid leave, depending on the circumstances of the employee’s request. Consult your city attorney for clarification.
Cities will want to be mindful that the ADA and Rehabilitation Act applies to emergency responders. In question D.12, the EEOC notes the CDC classification of “critical infrastructure workers” or “essential critical workers” does not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship. For additional information on accommodating employees under the COVID-19 pandemic, refer to Employment Accommodations During COVID-19.
A16. Four years. Specifically, an employer is required to retain all documentation for four years, regardless of whether leave was granted or denied. In the DOL’s April 1 guidance, it is noted if an employee provides oral statements to support his or her request for Emergency Paid Sick Leave or Public Health Emergency Leave, the employer is required to document and retain such information for four years. Keep in mind the ADA and MN Data Practices laws, require any associated medical documentation the city possesses be safeguarded to ensure others cannot access the protected information.
Q17. Is it true that all employers (including governments) are exempt from paying the employer’s share of the social security tax on wages paid under the FFCRA?
A17. Yes. Local governments are not allowed to use the tax credits, but the employer portion (equivalent to 6.2%) of the OASDI tax imposed by Section 3111(a) of the Code, which is also known as the social security tax, is exempted. (However, the employee portion of the social security tax is not exempted.) We have verified that payments made to employees taking paid leave pursuant to the FFCRA are not subject to the employer portion of the OASDI tax imposed by Section 3111(a) of the IRS Code (i.e., the 6.2%), which is also known as the social security tax. Unlike the “tax credit” section of the act, this particular section does not include an exclusion for governmental employers; therefore, the rule applies to all types of employers, including governmental employers. See also IRS FAQ 10 (IRS COVID-19 FAQs), which confirms that qualified Emergency Paid Sick Leave and qualified Public Health Emergency Leave payments are exempt from the employer portion (6.2%) of the social security tax.
At a minimum, government employers are going to need to document and track these qualified sick and family leave wages separately, in order to: a) not withhold the employer portion of social security (assuming software/system can handle not withholding employer only portion) and/or b) report the correct wages subject to employer portion of social security, most likely on the quarterly Form 941, although the IRS has not yet provided any information on this.
Any regular sick, vacation, or PTO used would be taxed as it normally is taxed because it isn’t considered qualified sick and family leave.
Q18. Do I need to keep employees on the city’s insurance while they are taking Public Health Emergency Leave or Emergency Paid Sick Leave?
A18. Yes, employees are entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave during the period of absence covered by the law. For additional information about health plan continuation under FMLA, please refer to the League’s FMLA memo.
Q19. Not necessarily a question, but a comment – there have been so many changes flying around, it’s hard to keep everything straight.
A19. We completely agree! There is good news; the Department of Labor will observe a temporary period of non-enforcement for the first 30 days, so long as the employer has acted reasonably and in good faith to comply with the Act.
A20. Yes, municipalities must comply with both the Public Health Emergency and Emergency Paid Leaves, regardless of the number of employees they employ, although such employers may exclude employees who are health care providers or emergency responders.
A21. The DOL regulations define son or daughter the same way for both Public Health Emergency and Emergency Paid Leaves. See also FAQ #Q6. This definition includes children under 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability. However, the IRS noted that if employees wish to take leave under Public Health Emergency Leave or Emergency Paid Sick Leave, the employee alone must be providing care to the child (thus, if another family member is present to care of the child, then the employee would not qualify for the leaves under the FFCRA).
Additionally, in the case of a 15- to 17-year old child, the employee must identify “special circumstances” requiring the employee to provide care. This IRS guidance appears to relate to tax-credits which local governments are not currently eligible for, but it may be a good idea to include on your forms in the event cities are eligible for this credit down the line.
Q22. I heard something about possible administrative forbearance for public employees who are using the Public Service Loan Forgiveness (PSLF). Where can I direct employees to learn more?
A22. The U.S. Department of Education has directed all federal student loan servicers to temporarily stop requiring payments (a forbearance) from any borrower with a federally held loan. If you have a Direct Loan, were on a qualifying repayment plan prior to the suspension, and work full-time for a qualifying employer during the suspension, then you will receive credit toward PSLF for the period of suspension as though you made on-time monthly payments. Servicers of federal student loans were directed to place borrowers in an automatic forbearance. To request a forbearance/stop payment/refund, borrowers should contact their federal student loan servicer online or by phone.
Q23. What federal funding is available to help cities address additional or unbudgeted staffing costs that arise during the pandemic?
A23. The Coronavirus Relief Fund may provide cities with unbudgeted COVID-19 costs with money distributed by the Minnesota Department of Revenue. Funding can be used to meet payroll expenses for the following categories of public employees:
- Public safety.
- Health care.
- Human services.
- Similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
City payroll costs for public health and public safety employees may be reimbursed if the payments are for services “substantially dedicated” to mitigating or responding to the COVID-19 public health emergency.
Payroll and benefit costs are also covered for employees who could have been furloughed or otherwise laid off but whose jobs were instead repurposed to perform previously unbudgeted functions substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
On July 8, 2020, the U.S. Treasury updated its FAQs regarding use of Coronavirus Relief Funds for increased administrative leave costs of public employees who could not telework in the event of a stay-at-home order or COVID-19 in the workplace. The Treasury noted, the statute requires that payments be used only to cover costs that were not accounted for in the budget most recently approved as of March 27, 2020. As stated in the Guidance, a cost meets this requirement if either (a) the cost cannot lawfully be funded using a line item, allotment, or allocation within that budget or (b) the cost is for a substantially different use from any expected use of funds in such a line item, allotment, or allocation. If the cost of an employee was allocated to administrative leave to a greater extent than was expected, the cost of such administrative leave may be covered using payments from the Fund. Recall that while the U.S. Treasury notes eligible costs are to be incurred before Dec. 30, 2020, that cities are to return funds to the county by Nov. 15, 2020, so it would be better to use the Nov. 15 deadline.
Cities may also receive reimbursement for the cost of deploying staff to substantially different functions due to the pandemic. Costs may include personnel and services that were budgeted for in the most recently approved budget but which, due entirely to the COVID-19 public health emergency, have been diverted to substantially different functions. The guidance provides the following illustrative examples:
- Redeploying corrections facility staff to enable compliance with COVID-19 public health precautions through work such as enhanced sanitation or enforcing social distancing measures.
- Redeploying police to support management and enforcement of stay-at-home orders.
- Diverting educational support staff or faculty to develop online learning capabilities, such as through providing information technology support that is not part of the staff or faculty’s ordinary responsibilities.
The guidance notes a public function does not become a “substantially different use” merely because it is provided from a different location or through a different manner. For example, although developing online instruction capabilities may be a substantially different use of funds, online instruction itself is not a substantially different use of public funds than classroom instruction.
The entire payroll cost of an employee whose time is substantially dedicated to mitigating or responding to the COVID-19 public health emergency is eligible for fund payments, provided that such payroll costs are incurred by Dec. 30, 2020. An employer may also track time spent by employees related to COVID-19 and apply fund payments on that basis but would need to do so consistently.
Hazard pay would be eligible if determined to be a necessary expense. Hazard pay means additional pay for performing hazardous duty or work involving physical hardship, in each case that is related to COVID-19. However, hazard pay expenses would only be eligible if paid to the categories of employees mentioned above (public safety, public health, health care, human services, etc.).
The funds may also be used to cover employment and training programs for employees furloughed due to the public health emergency if the city determined the costs of such employment and training programs would be necessary due to the public health emergency.
Q24. Can employees who are exempt from the FLSA’s overtime requirements under the executive, administrative and professional exemptions perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?
A24. Yes. During the COVID-19 public health emergency — as declared by a federal, state, or local authority — exempt employees may temporarily perform nonexempt duties required by the emergency without losing their exempt status.
Q25. Will telemedicine visits count as in-person visits to establish a serious health condition under the FMLA?
A25. In FAQ #12 of the DOL notes yes, until Dec. 31, 2020 they will consider telemedicine visits to be in-person visits if the visit includes an examination, evaluation or treatment by a health care provider; is performed by videoconference; and is permitted and accepted by state licensing authorities. Electronic signatures also will be accepted to establish a serious health condition under the FMLA.