36 MAY / JUNE 2020 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Families First Coronavirus Response Act Basics that employers need to know In the wake of the COVID-19 coronavirus pandemic, Congress enacted the Families First Coronavirus Response Act (FFCRA). The Act took effect April 1, 2020, and is currently scheduled to sunset on Dec. 31, 2020. Among other provisions, the Act (1) mandates two weeks of emergency paid sick leave for certain COVID-19 related absences; (2) expands the Family and Medical Leave Act (FMLA) temporarily to provide paid leave for employees who need to care for children out of school because schools are closed or because child care is unavailable; and (3) provides employers with tax credits for leave paid under the Act. The Act is not retroactive, meaning that employers will not receive tax credits for leave given prior to April 1, 2020. Emergency Paid Sick Leave Under the Act, private sector employers with less than 500 employees* must pay employees, who are not able to work or work remotely (telework), two weeks (up to 80 hours for full-time employees and for parttime employees the average number of hours over a standard two-week period) of emergency paid sick leave if an employee: • Has been ordered by the federal, state or local government to quarantine or isolate because of COVID-19; • Has been advised by a health care provider to selfquarantine because of COVID-19; • Has symptoms of COVID-19 and is seeking a medical diagnosis; • Is caring for an individual who is subject to a government quarantine or isolation order or has been advised by a healthcare provider to quarantine or self-isolate; • Needs to care for a son or daughter whose school or childcare service is closed or their caregiver is unavailable due to COVID-19 precautions; or • Is experiencing other substantially similar conditions as may be specified by the Secretary of Health and Human Services in consultation with the other federal agencies. For the first three reasons, the paid leave is at an employee’s regular rate of pay, subject to a cap of $511 per day. For the last three reasons, the paid leave is twothirds of the employee’s regular rate of pay, subject to a cap of $200 per day. Regular rate of pay is the average of the employee’s regular rate of pay over a period of six months prior to the date on which the employee takes leave, or if the employee has been employed less than six months, the length of employment. In determining regular rate, all income (including salary, commissions, overtime and non-discretionary bonuses) must be included. Purely discretionary bonuses (bonuses that are not tied to an employee’s hours worked, production, efficiency, etc.) may be excluded; however, this exclusion is narrow. Regular rate of pay can be calculated by either (1)
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