by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
April 02, 2020
And the beat goes on, the beat goes on
Drums keep pounding a rhythm to the brain
La de da de de, la de da de da*
Sonny & Cher
Bet that song will be in your brain all day now – you’re welcome!
We are getting pounded daily with new guidance on the Families First Coronavirus Response Act (FFCRA). Here’s the drumbeat from the last couple of days – FFCRA tax credits guidance and 
Department of Labor temporary regulations (124 pages!) explaining the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA). (For our prior COVID-19 posts you can just scroll down in this blog. But remember, things keep changing so always look here for the latest!)
DOL Temporary FFCRA Regulations
I have to admit, I have not yet read all 124 pages of the temporary regulations and won’t try to summarize them yet. That will be part of my fun weekend. It will be an easy way to keep appropriate social distance! But the regs have arrived and you can enjoy them yourself here.
COVID-19-Related Tax Credits
First, a refresher. The FFCRA is applicable to employers with fewer than 500 employees. The act requires covered employers to provide paid leave through two separate provisions: (i) the EPSL, which entitles workers to up to 80 hours of paid sick time when they are unable to work for certain reasons related to COVID-19, and (ii) the EFMLA, which entitles workers to certain paid family and medical leave when their child’s school is closed or daycare is unavailable due to COVID-19.
Covered employers can claim tax credits for wages paid as required by EPSL and EFMLA. These tax credits also include any qualified health plan expenses and the employer’s share of Medicare tax on the FFCRA wages paid. Details on how to claim the tax credit are available in the IRS guidance. Be sure to share it with your tax advisor (I’ll bet they already have it)!
Documentation is Really Important! Kind employers may be inclined to take an employee’s word for the reason they need paid leave under EPSL and/or EFMLA, but doing so may be kissing the 100% tax credit goodbye. You can’t get the tax credit without some pretty detailed documentation. The following information is found in Questions 44 and 45 of the IRS guidance:
For all paid leave reasons, the employee must make a WRITTEN request for paid leave that includes:
- The employee’s name;
- The date or dates for which leave is requested;
- A statement of the COVID-19 related reason the employee is requesting leave and written support
for such reason; and - A statement that the employee is unable to work, including by means of telework, for such reason.
And:
In the case of a leave request based on a quarantine order or self-quarantine advice for the employee or a family member, the written statement from the employee should include:
- The name of the governmental entity ordering quarantine or the name of the health care professional
advising self-quarantine; and, - If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s
name and relation to the employee.
In the case of a leave request based on a school closing or child care provider unavailability, the written statement from the employee should include:
- The name and age of the child (or children) to be cared for;
- The name of the school that has closed or place of care that is unavailable; and
- A representation that no other person will be providing care for the child during the period for which
the employee is receiving family medical leave; and - With respect to the employee’s inability to work or telework because of a need to provide care for a
child older than fourteen during daylight hours, a statement that special circumstances exist requiring
the employee to provide care.
In other words, an employee cannot get paid EPSL or EFMLA during a school closure or unavailability of day care due to COVID-19 if someone else is providing care to the child(ren) during the time for which the employee is claiming paid leave. Does this mean that if one parent is home due to a business closure, the other parent cannot take paid leave to care for the child? It would seem so, and that seems fair. There is no guidance as to what would constitute special circumstances that make an employee unable to telework even though his children are over 14. Special needs come to mind. Or, “My child is a pyromaniac and must be watched at all times!” (Another song reference – any Def Leppard fans out there?)
And the beat goes on! In addition to the above documentation, the employer must create and maintain records that include the following information:
- Documentation to show how the employer determined the amount of EPSL an EFMLA wages paid to
employees that are eligible for the credit, including records of work, telework and qualified sick leave
and qualified family leave. - Documentation to show how the employer determined the amount of health plan expenses being claimed.
- Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the
employer submitted to the IRS. - Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted
to the IRS (or, for employers that use third party payers to meet their employment tax obligations,
records of information provided to the third party payer regarding the employer’s entitlement to the
credit claimed on Form 941).
Matrix Can Help!
Where else can you get COVID-19 leave news, insightful interpretations and the occasional music throwback? Sure, everyone says “We’re all in this together,” but admit it – it’s more fun together with us. Stay informed, stay loose and reach out to your Matrix or Reliance Standard account manager for help making your program make sense.
*The Beat Goes On written by Sonny Bono. © Warner Chappell Music, Inc.