What Household Employers and Nannies Need to Know About the Families First Coronavirus Response Act

President Trump recently signed the Families First Coronavirus Response Act into law.

Federal regulatory agencies, including the Department of Labor (DOL) and Health and Human Services (HHS), will provide guidance on how to execute or implement the new requirements.

As written, the law applies to household employers. However, the Secretary of Labor has the authority to exempt employers with fewer than 50 employees. This hasn’t happened yet and it’s unclear if the exemption would apply to household employers.

Also, the law only applies only employees who are working on or after April 1. At this time, the law won’t be retroactive to cover employees who take leave before that date.

Please note the new effective date announced by the Department of Labor of April 1. Based on the language in the bill, the effective date was widely believed to be April 2.

In the meantime, here’s what household employers and their workers should know about the law.

Update: The U.S. Department of Labor Issues Guidance on Employer Responsibilities under FFCRA.

Paid leave

For certain circumstances related to COVID-19, household employees will be eligible for

• Up to two weeks of sick leave (full pay for self, 2/3 pay for family care) for illness, quarantine, or school closures
• Up to 12 weeks of Family and Medical Leave Act (FMLA) leave for school closures (10 days unpaid and then up to 10 weeks at 2/3 pay)

Effective dates of law

The FMLA and Paid Sick Leave sections will go into effect on April 1, 2020, and expire December 31, 2020. It appears there is no retroactive application.

Emergency paid sick leave

Here’s how the emergency paid sick leave section of the law affects household employment.

Covered employers

Employers with fewer than 500 employees.

Covered employees

All employees (no matter how long they have been employed), though employers may be able to exclude employees who are health care providers.

Covered leave purposes

Covered leave takes effect when an employee is:

1. Quarantined or isolated subject to federal, state, or local quarantine/isolation order;
2. Advised by a health care provider to self-quarantine (due to COVID-19 concerns);
3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. Caring for an individual doing #1 or #2 (2/3 pay);
5. Caring for a child whose school or place of care is closed due to COVID-19 (2/3 pay); or
6. Experiencing any other substantially similar condition (2/3 pay).

Duration of leave

Full-time employees are entitled to 80 hours of paid sick leave.

Part-time employees are entitled to sick leave equal to the number of hours worked on average over a typical two-week period.

Rate of pay

• Sick leave must be paid at the employee’s regular rate of pay for leave used for the employee’s own illness, quarantine, or care.
• Sick leave must be paid at two-thirds of the employee’s regular rate if taken to care for a family member or to care for a child whose school has closed, or if the employee’s childcare provider is unavailable due to the coronavirus.
• Pay is capped at $511/day and $5,110 total for covered leave purposes 1, 2, and 3 as described above.
• Pay is capped at $200/day and $2,000 total for covered leave purposes 4, 5, and 6 described above.

Interaction with other employer-provided paid sick leave and other paid leave

The law doesn’t preempt existing state and local paid sick leave requirements.

• Employers can’t require their employees to use other leave first.
• Sick leave provided for under the act does not carry over from year to year and requirements expire December 31, 2020.

Job protection

The employee’s job is protected but employers with less than 25 workers don’t have to restore the employee’s job if the job no longer exists, the employer makes a reasonable effort to return the employee to an equivalent position, and the employer makes reasonable efforts to contact a displaced worker within a year of when they would have returned to work.

Note: The act reserves the right to exclude certain care providers from the list of eligible employees and to exempt small businesses with fewer than 50 employees if business viability is jeopardized.

Check your state labor agency website as some states – like New York – have implemented job protection measures that may supersede federal law if it is more beneficial to the employee.

Emergency FMLA expansion

Here’s how the emergency FMLA expansion section of the law affects household employment.

Covered employers

Employers with fewer than 500 employees are covered.

Covered employees

Any employee who has been employed for at least 30 calendar days, though employers may be able to exclude employees who are health care providers.

Covered leave purpose

To care for a child under 18 of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency, defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.

Duration

Up to 12 weeks of job-protected leave.

Compensation

• No pay for first 10 days of leave (other paid time off and emergency sick leave under the FFCRA may be applied)
• After 10 days, employers must pay two-thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 total.

Reinstatement to a position after leave

Restoration to a position does not apply to employers with fewer than 25 employees if certain conditions are met:

• The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency;
• The employer makes reasonable efforts to return the employee to an equivalent position; and
• The employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

Note: The act reserves the right to exclude certain care providers from the list of eligible employees and to exempt small businesses with fewer than 50 employees if business viability is jeopardized.

Check your state labor agency website as some states – like New York – have implemented job protection measures that may supersede federal law if it is more beneficial to the employee.

Notice requirements

Employers must post a model notice, which will be provided by the federal government.

Payroll tax credit

The IRS has issued instructions on how employers can take advantage of the tax credits offered by FFCRA.

• A payroll tax credit will apply to both the emergency FMLA expansion and the emergency sick leave.
• Dollar for dollar credit for sick leave and paid FMLA wages against the employer portion of Social Security taxes.
• A refund is possible for amounts that exceed what is available as a credit.
• Limits on what can be claimed mirror the caps for what must be paid.

Download a Paid Sick Leave Request Form to Comply with FFCRA Documentation Requirement

Health plan benefit mandate

All insured and self-funded medical plans, including grandfathered plans, are to cover diagnostic testing-related services for COVID-19 at 100 percent without any deductibles or co-pays. Examples include services provided by doctors, emergency rooms, and urgent care centers leading up to the decision that testing is needed, along with the actual lab-based testing. The mandate does not apply to treatment.

GTM can help

If you have any household employment questions during the COVID-19 pandemic, don’t hesitate to contact us at (800) 929-9213. We’ll be happy to help.

Need more personalized assistance? Our HR Concierge Service (PDF) can help you handle any HR issues, comply with labor laws, and create peace of mind in your home. Call (800) 929-9213 to learn more or get started.

For GTM clients, we want to reassure you that your payroll will continue to process as normal, and your employee(s) will continue to receive their pay. You can continue to reach us by phone, email, and live chat.