The Families First Coronavirus Response Act (FFCRA) provides for two sources of paid leave for employees in response to the coronavirus epidemic. The act applies to all employers with less than 500 employees. The act is intended to assist employers with recoupment of costs via payroll tax reimbursement. This webinar also will provide information on those credits.

1. FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)
WHAT YOU NEED TO KNOW

2. WHO WE ARE
Ali Tozier, Esq.
atozier@mpmlaw.com
Sage Friedman, Esq.
sfriedman@mpmlaw.com
Stacey Neumann, Esq.
sneumann@mpmlaw.com

3. THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
OVERVIEW
 The FFCRA requires Employers with fewer than 500 employees to provide
emergency with paid sick leave [the Emergency Paid Sick Leave Act (“EPSLA”)]
and family leave [the Emergency Family and Medical Leave Expansion Act
(“EFMLEA”)] to employees grappling with the impact of COVID-19.
 These two types of leave (Family Leave and Sick Leave) may both be taken, and the
order doesn’t matter.
 The FFCRA applies April 1, 2020 through December 31, 2020, and employers will
be reimbursed.
 Employers with 500 or more employees are encouraged to provide the same leave.
They will not be reimbursed.

4. THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
OVERVIEW
Employees terminated/ furloughed before April 1,
2020, or who get terminated/ furloughed after April 1,
2020 are not entitled to paid leave.

5. NEW LEAVE NOTICE
 The Notice is available free and online here:
www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_P
oster_WH1422_Non-Federal.pdf
 Employers must place the Notice in a conspicuous place, so
their employees can see it.
 Employers may satisfy this requirement by emailing or direct
mailing this notice to employees, or posting this notice on
an employee information internal or external website.
 Employers are not required to post this notice in multiple
languages, but the Department of Labor (Department) is
working to translate it into other languages.

6. FAMILIES FIRST PAID EMERGENCY SICK LEAVE
 The Emergency Paid Sick Leave Act (“EPSLA”) is part of FFCRA -
Division E of regulations.
 Employers must provide two weeks of Employee Paid Sick
Leave (EPSL) (= 10 days/80 hours for full-time employees) for
any of the 6 qualifying reasons.
 Employers are responsible for payment but can get tax credits to
recoup funds used to pay for this Sick Leave.

7. FAMILIES FIRST PAID EMERGENCY SICK LEAVE
Employers
 All employers with fewer than 500 employees must comply.
Small Business Exemption for Sick Leave only applies
to child-care related sick leave – NO exemption
otherwise.
May not apply to healthcare workers and emergency
workers depending on their employer.

8. FAMILIES FIRST PAID EMERGENCY SICK LEAVE
Employees
 All employees eligible regardless of length of
employment.
 Includes seasonal and temporary employees!
 Full-time employees are eligible for 80 hours of leave (or
2 weeks).
 Part-time employees are eligible for the number of hours
of leave that those employees worked on average over a
two-week period.

9. THE 6 QUALIFYING CONDITIONS FOR PAID SICK LEAVE (EPSLA)
First 3: Impacts of COVID-19 individually on Employee
1. Is Employee subject to a Federal, State, or local quarantine or isolation order related to
COVID-19?
2. Has Employee been advised by a health care provider to self-quarantine?
3. Is the Employee experiencing COVID-19 symptoms and seeking a medical diagnosis?
Second 3: Has the Employee been caring for someone else due to COVID-19?
4. Is the Employee caring for an individual subject to an order described in (1) or self-
quarantine as described in (2)?
5. Is the Employee caring for his or her child whose school or place of care is closed (or
child care provider is unavailable) due to COVID-19 related reasons?; or
6. Is the Employee experiencing any other substantially-similar condition specified by the
U.S. Department of Health and Human Services?

10. PAYMENT UNDER EACH OF THE 6 CONDITIONS
Payment is the GREATER of Employee’s regular rate or the minimum wage rate
First 3: Impacts of COVID-19 individually on Employee
 100% of pay (up to $511 daily and $5,110 total)
Second 3: Has the Employee been caring for someone else due to COVID-
19?
 2/3 of pay (up to $200 daily and $2,000 total)

11. ENTITLEMENT TO PAID SICK LEAVE (EPSL)
 Employees are not entitled to Sick Leave at
termination under EPSL.
 If an employee does not use all of her Sick or
Family Leave for one qualifying event, the employee
can bank the time to use at a later qualifying date.
 FFCRA no longer is in effect after December 31,
2020, unless it gets extended.

12. EMPLOYERS CANNOT FORCE EMPLOYEES TO USE OTHER PAID LEAVE
 Employers may not require employees to use other forms of paid
leave prior to use of EPSL.
 For employers with existing paid sick or other leave policies, EPSL is
in addition to such paid leave.
 Covered employers are prohibited from modifying any paid leave
policies to avoid being subject to this requirement.
 Employers may not require the employee to identify a replacement
employee in order to take paid sick leave.

13. ANTI-RETALIATION PROVISIONS APPLY
 EPSL contains anti-retaliation provisions and
imposes penalties for denial of EPSL in
accordance with the FLSA.
 Use caution if employees request additional
unpaid leave for COVID-19 reasons after
using up their leave options.

14. THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION
ACT (“EFMLEA”)
 FFCRA also amends the Family and Medical Leave Act
(“FMLA”) to provide for an expansion of eligibility for
leave for certain employees and provides for payments
to employees taking unpaid leave for childcare purposes
due to the COVID-19 outbreak.
 Employers are responsible for payment but can get tax
credits to recoup funds used to pay for this Family
Leave.

15. UNDERSTANDING THE FAMILY/MEDICAL LEAVE ACT (EFMLEA)
EFMLEA Much More Expansive Than FMLA
 FMLA does not apply to employers with less than 50 employees.
FMLA only applies to employees who have worked a specified
number of hours and been employed for over a year.
 EFMLEA applies to all employers with fewer than 500 employees.*
Applies to employees who have been employed for at least 30
days. (Employees do not have to have worked all 30 days.)
*Small Business (less than 50 employees) may qualify for exemption.

16. UNDERSTANDING THE FAMILY/MEDICAL LEAVE ACT (EFMLEA)
EFMLEA
Qualifying Event – Employee is unable to work OR
telework due to school/daycare closure related to
COVID-19.

17. UNDERSTANDING THE FAMILY/MEDICAL LEAVE ACT (EFMLEA)
 First 2 weeks can be UNPAID and for the remaining 10 weeks, an
individual can receive paid leave calculated at:
 2/3 of regular pay up to $200/day up to $10,000 in the
aggregate.
 Employers can allow (but not require) employees to use paid
accrued time during 1st 10 days.
 Employees eligible under category 5 of EPSLA for paid first 2 weeks
= overlap.
 EFMLEA could be on top of those paid two weeks, for a total of
12 weeks paid.

18. HEALH CARE WORKERS AND
FEDERAL WORKERS
 Employers may exclude of healthcare providers and
emergency responder employees from the (Family Leave)
EFMLEA and the (Sick Leave) EPSLA.
 The EFMLEA (Family Leave) doesn’t apply to most federal
workers. (It depends on whether federal workers are covered
under Title I or Title II of the Family Medical Leave Act
(“FMLA”)).
 The EPSLA (Sick Leave) does apply to federal workers.

19. HOW TO CALCULATE HOURS WORKED
(SICK AND FAMILY LEAVE)
 Hours in agreed-upon schedule will control
 Average of hours per day that the employee worked
over the previous 6-month period.
 If no agreement and worked less than 6 months,
average of the total time worked.

20. FFCRA: DOCUMENTATION
 Employers need documentation to get reimbursed from
government.
 Employers are not required to provide leave to their employees if
the employees do not submit materials sufficient to support the
applicable tax credit.
 Caution! If supporting documentation is readily available (i.e. A
public Stay-At-Home Order), there is no need for the employer to
require employees to provide it. But keep for records.
 DOL has issued some guidance & references upcoming IRS
guidance for more. Refers to relying on advice of “health care
providers” who a permitted to issue a certification.

21. DOCUMENTATION EXAMPLES
 Examples:
 Notice posted on a government, school, or day care website about a closure
 Notice published in a newspaper or online
 Email from an employee or official of a school, place of care, or child care provider
 Medical documentation (not necessarily required, but get if you can)
 Email or text from a healthcare provider
 Voicemail.
 Save copies of applicable email and text message exchanges with employees.
 Verbal conversations relating to FFCRA or other types of leave should be memorialized
in written form and kept in employee files.

22. JOB PROTECTION
 Same Requirement as FMLA – employee comes back to same
position.
 But exception for employer with fewer than 25 employees AND:
the position held by the employee when the leave
commenced does not exist due to economic conditions, or
other changes in operating conditions of the employer.
 Employers must first make reasonable efforts to restore the
employee to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment.

23. LAW IS NOT RETROACTIVE
 If you provided benefits to
employees before April 1st you are
not eligible for tax credits.
This Photo by Unknown Author is licensed under CC BY-SA-NC

24. CAN EMPLOYEES TAKE PAID INTERMITTENT LEAVE WHILE
TELEWORKING?
SICK LEAVE:
 Yes if teleworking and
agreement is made (get
in writing!)
FAMILY LEAVE:
 Yes
Intermittent leave while teleworking can be
taken in increments, as long as employer and
employee agree.

25. CAN EMPLOYEES TAKE PAID INTERMITTENT LEAVE WHILE AT
WORKSITE?
SICK LEAVE:
 Depends on reason for leave:
 Yes if related to child-care
only
Must be taken in full-day
increments only
 No otherwise
FAMILY LEAVE:
 Yes

26. SMALL BUSINESS EXEMPTION
 Employers with less than 50 employees may apply for an
exemption to the EFMLEA (family leave).
 Exemption for EPSLA (sick leave) only child-care related
leave.
 Not an automatic exemption – requires an application.
 Exemption for when compliance with FFCRA will jeopardize the
business’ viability.

27. QUALIFICATIONS FOR SMALL BUSINESS EXEMPTION
The Small Business Exemption to Family Leave and Sick Leave (for childcare
related reasons) may apply if offering leave would:
 Cause the business to exceed its financial capacity and cease operating.
 Risk the viability of the business due to the absence of employees
with essential specialized skills, knowledge of the business, and key
responsibilities.
 Leave the business without a sufficient willing, able, and qualified
workforce to continue operating.

28. SMALL BUSINESS EXEMPTION
GATHER SUPPORTIVE DOCUMENTATION
 Start gathering support for the requirements on the proceeding slides.
 Do not send anything into the DOL yet.
 Mechanism for how to apply for exemption still unclear.

29. WHO PAYS FOR THIS LEAVE?
 Both Sick Leave (EPSL) and Family Leave (PHEL) are paid for through a fully refundable
payroll tax credit up to the maximum amount for each type of leave based on what the
employer spends.
 Employer will be reimbursed dollar for dollar up to the maximum benefits per employee:
 Maximum Sick Leave benefit for each employee would be for wages up to $511 per day
while the employee is receiving EPSL to care for themselves, or $200 per day if the
EPSL is to care for an individual or to provide care for a child due to school or childcare
closures.
 Maximum Family Leave benefit (PHEL) for each employee is up to $200 per day or
$10,000 in the aggregate.

30. PAYROLL TAX CREDIT
 Employers can offset the cost of providing leave immediately against the
employer’s payroll tax withholding obligations (including employee
contribution).
 Example: If an eligible employer paid $5,000 in sick leave and is otherwise
required to deposit $8,000 in payroll taxes, including taxes withheld from all
its employees, the employer could use up to $5,000 of the $8,000 of taxes it
was going to deposit for making qualified leave payments. The employer
would only be required under the law to deposit the remaining $3,000 on its
next regular deposit date.

31. IRS EXPEDITING PROCESSING OF
REFUND REQUESTS
 Employers that spend more on providing leave than their payroll tax
withholdings provide for will be able to file an accelerated or expedited
request for a refund.
 Example: If an eligible employer paid $10,000 in sick leave and was required
to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes
in order to make qualified leave payments and file a request for an accelerated
credit for the remaining $2,000.
 IRS has not yet released the forms involved, but publically committed to a two-
week expedited processing timeframe.

32. PAYROLL TAX CREDIT – SELF EMPLOYED
 Self-employed persons are eligible for these benefits
any leave benefits used will be paid for through reduced
estimated payments of the self-employed person’s
federal income taxes.

33. PAYCHECK PROTECTION PROGRAM (PPP)
Program Overview
 The Paycheck Protection Program comes from the federal government’s U.S. Small Business
Administration (“SBA”).
 Designed to provide a direct incentive for small businesses to keep their workers on the
payroll.
 Each small business may “borrow” 2.5 times its average monthly payroll costs over the 12
months prior to the date of the application, and those funds can be accepted tax-free.
 SBA will forgive the loans if all employees are kept on the payroll for eight weeks and
the money is used for payroll, rent, mortgage interest, or utilities.
 The Paycheck Protection Program will be available through June 30, 2020.

34. PAYCHECK PROTECTION PROGRAM (PPP)
Funds
 Funds delivered by financial institution.
 You should consult with your local lender as to
whether it is participating in the program.
 Lenders may begin processing loan applications as
soon as April 3, 2020.

35. OTHER PROGRAMS
 Small Business Administration Economic Injury Disaster Loan. Learn more.
 Finance Authority of Maine Covid-19 Relief Interim SBA Finance Loan
Program. Learn more.
 Finance Authority of Maine Covid-19 Relief Business Direct Loan Program.
Learn more.
 SBA Expanded Emergency Economic Injury Disaster Loan (EIDL). Learn more.
 SBA Loan Payment Subsidy Program. Learn more.
https://www.mpmlaw.com/economic-relief-for-businesses/

36. OTHER PROGRAMS
IRS Tax Credits & Benefits for Businesses
 Employee Retention Credit
 Payroll Tax Deferment
 Net Operating Losses
 Acceleration of AMT Credits
 Increased Limit of Interest Expense
 Accelerated Depreciation for Property Improvements
https://www.mpmlaw.com/economic-relief-for-businesses/

37. OTHER PROGRAMS
Federal Reserve Direct Lending Programs
 Main Street Business Lending Program
 Primary Market Corporate Credit Facility
 Secondary Market Corporate Credit Facility
 Term Asset-Backed Securities Loan Facility
A number of banks are offering relief to customers at this time.
https://www.mpmlaw.com/economic-relief-for-businesses/

38. CONTACT
Do not hesitate to reach out to us. We can help.
Ali Tozier, Esq.
atozier@mpmlaw.com
Sage Friedman, Esq.
sfriedman@mpmlaw.com
Stacey Neumann, Esq.
sneumann@mpmlaw.com

39. COMMON QUESTIONS

40. DO YOU HAVE PAY LEAVE AT TERMINATION?
FFCRA Leave:
NO
Other Accrued Leave:
MAYBE:
- Yes if you normally pay your employees upon separation
from employment and/of if you handbook says so
- No if you do not normally pay for it and your handbook
does not state otherwise.

41. ARE EMPLOYEE JOBS PROTECTED?
 Furlough/Termination/Layoff:
 No job protection
 FFCRA Leave:
Job protection absent exemptions discussed
previously

42. WILL EMPLOYEES BE ABLE TO USE FMLA AFTER FFCRA LEAVE?
 It depends.
 For employer covered by the FMLA prior to April 1, 2020: employee can only use 12
weeks total of regular FMLA leave (including under the FFCRA) during a 12-month
period under the FMLA.
 EPSLA (sick leave) is counted separately.
 Example: assume an employee is eligible for preexisting FMLA leave and took two
weeks of such leave in January 2020 to undergo and recover from a surgical
procedure. The employee therefore has 10 weeks of FMLA leave remaining. Because
expanded family and medical leave is a type of FMLA leave, the employee would be
entitled to take up to 10 weeks of expanded family and medical leave, rather than 12
weeks.

43. WILL EMPLOYEES UNDER STAY AT HOME/SHELTER IN PLACE ORDER
BE ELIGIBLE UNDER PAID SICK LEAVE UNDER THIS ACT?
 Yes – if teleworking is not available.
 Employee subject to government quarantine or
isolation for COVID-19 – qualifying event.
 But if you close your business and employees are
terminated/furloughed due to COVID-19, you
are not required to pay employees.
 Employees are eligible for unemployment.

44. IS OVERTIME INCLUDED WHEN CALCULATING PAY?
 Yes, if an hourly employee was normally
scheduled to work more than 40 hours per week,
it would be the normal hours per week.
 However, cap is still 80 hours.

45. HOW IS A “PART-TIME EMPLOYEE” DEFINED?
 For purposes of the Emergency Paid Sick Leave Act, a part-
time employee is an employee who is normally scheduled to
work fewer than 40 hours per week.
 In contrast, 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.

46. DO EMPLOYEES STILL RECEIVE BENEFITS WHILE ON PAID SICK
LEAVE?
 Yes. Employees on Family Leave and Sick
Leave should still be receiving normal benefits
as if they were still at work. This includes
health care benefits.

47. THANK YOU!
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