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Note: The legislation this fiscal policy and procedure (FPP) addresses expired on Sept. 30, 2021, so the FPP is no longer effective.

Families First Coronavirus Response Act (FFCRA) Guidance

Issued: April 8, 2020
Updated: April 30, 2021 – View Changes

FPP F.041

Overview

Applicable to

State agencies and institutions of higher education.

Background

Congress enacted the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, effective April 1, 2020. This law, amended by the Coronavirus Aid, Relief and Economic Security (CARES) Act, requires certain employers to provide employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. As public employers, state agencies and institutions of higher education must comply with the FFCRA regardless of agency size. See the Department of Labor’s Families First Coronavirus Response Act: Questions and Answers, questions 39 and 52-54.

Note: The Consolidated Appropriations Act, 2021, signed in December 2020, allows agencies and institutions to voluntarily continue offering the emergency paid sick leave and expanded family medical leave required by the FFCRA through March 31, 2021. It does not provide any additional leave, so if your agency chooses to continue offering this leave, be sure employees do not take more leave than they are entitled to under the Emergency Paid Sick Leave Act or the Emergency Family Medical Leave Expansion Act. See the Department of Labor’s Families First Coronavirus Response Act: Questions and Answers, question 104, for additional information.

The American Rescue Plan Act of 2021 (ARP), effective April 1, 2021, further extends agencies’ and institutions’ ability to voluntarily offer emergency paid sick leave and expanded family medical leave created by the FFCRA through Sept. 30, 2021. Some provisions of the FFCRA were amended by the ARP; those changes are included in each applicable section.

Emergency Paid Sick Leave Act

Note: The federal mandate for employers to provide this leave expired Dec. 31, 2020. However, the Consolidated Appropriations Act, 2021, allowed agencies and institutions to voluntarily continue offering emergency paid sick leave, which had been required by the FFCRA, through March 31, 2021, up to the original entitlement.

The ARP further extends agencies’ and institutions’ ability to voluntarily offer emergency paid sick leave created by the FFCRA through Sept. 30, 2021. Some provisions of the FFCRA were amended by the ARP; those changes are included below.

Covered employers must provide employees up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of emergency paid sick leave, which can only be used for specified reasons related to COVID-19. The rate of pay for this leave varies depending on the reason for its use. Employees may not carry over unused emergency paid sick leave hours granted between April 1, 2020, and March 31, 2021.

Effective April 1, 2021, employers may provide employees up to an additional 10 days of emergency paid sick leave.

The leave pay should be the employee’s regular rate of pay, as determined under section 7(e) of the Fair Labor Standards Act of 1938, if the employee is unable to work due to any of the following:

  • Being quarantined by order of the federal, state or local authority, or at the advice of a health care provider.
  • Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Being tested or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 due either to exposure or employer request (valid only after April 1, 2021).
    – or –
  • Obtaining immunization for COVID-19 or recovering from any injury, disability, illness or condition related to such immunization (valid only after April 1, 2021).

Note: The amount of pay for an employee in these circumstances is limited to a maximum of $511 per day, or a total of $5,110 for the 80 hours, or the prorated part-time equivalent.

The leave pay should be not less than two-thirds the employee’s regular rate of pay, as determined under section 7(e) of the Fair Labor Standards Act of 1938, if the employee is unable to work due to any of the following:

  • A legitimate need to care for an individual subject to quarantine ordered by the federal, state or local authority, or at the advice of a health care provider.
  • Caring for a child under 18 whose school or child-care provider is closed or unavailable for reasons related to COVID-19.
    – or –
  • Experiencing a substantially similar condition as specified by the secretary of Health and Human Services, in consultation with the secretaries of the Treasury and Labor.

Note: The amount of pay for an employee in these circumstances is limited to a maximum of $200 per day, or a total of $2,000 for the 80 hours, or the prorated part-time equivalent.

Employees may take this leave for any combination of the reasons above up to the maximum number of hours they are entitled to.

Employers of health care providers or emergency responders may choose to exclude those employees from eligibility for the leave provided under the act.

Note: This leave is limited for all employments in the state of Texas. If an employee transfers from one agency to another or terminates and is rehired with a break in service, the employee is not entitled to any additional sick leave under this act. Any unused leave with the first employing agency can be transferred to the new employing agency until the employee has exhausted his or her full entitlement.

Emergency Family Medical Leave Expansion Act

Note: The federal mandate for employers to provide this leave expired Dec. 31, 2020. However, the Consolidated Appropriations Act, 2021, allowed agencies and institutions to voluntarily continue offering the expanded family medical leave that had been required by the FFCRA through March 31, 2021, up to the original entitlement.

The ARP further extends agencies’ and institutions’ ability to voluntarily offer expanded family medical leave created by the FFCRA through Sept. 30, 2021. Some provisions of the FFCRA were amended by the ARP; those changes are included below.

Under the Emergency Family Medical Leave Expansion Act (E-FMLA), for employees with at least 30 days’ service, covered employers must provide:

Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the eligible employee’s regular rate of pay, as determined under section 7(e) of the Fair Labor Standards Act of 1938, if the employee is unable to work due to a legitimate need to care for a child whose school or child-care provider is closed or unavailable for reasons related to COVID-19.

Note: The amount of pay for an employee in these circumstances is limited to a maximum of $200 per day, or a total of $10,000 for 10 weeks.

For the period from April 1 through Sept. 30, 2021, the ARP raises the maximum amount for paid family leave wages from $10,000 to $12,000 and eliminates the requirement that the initial 10 days be unpaid. The ARP also amended the E-FMLA so all reasons listed as eligible for leave under the Emergency Paid Sick Leave Act (EPSLA), as amended, are qualifying reasons for leave under the E-FMLA.

These are temporary qualifying reasons to take job-protected leave under the Family Medical Leave Act of 1993 (FMLA), not an extension of additional time beyond the 12 work weeks provided by the FMLA. Employees will only be eligible to take paid leave under the E-FMLA to the extent that they have not already exhausted their FMLA entitlement.

Employers of health care providers or emergency responders may elect to exclude such employees from eligibility for the leave provided under the act.

Supplementing Pay

The Department of Labor (DOL) has issued guidance which allows an employer and employee to agree to supplement an employee’s reduced pay under the FFCRA provisions, up to the employee’s full regular pay, if the employee chooses to use other accrued paid leave. See the DOL’s Families First Coronavirus Response Act: Questions and Answers, question 31.

Agencies would need to calculate the difference between the amount of pay to which the employee is entitled due to the Emergency Paid Sick Leave and/or the Paid Family Medical Leave and the employee’s regular pay, then using the monthly equivalent hourly rate, determine the number of hours of leave the employee must use to receive the difference in regular pay. The agency must make an entry in the timekeeping system to reduce the employee’s applicable leave balance(s) by the number of hours determined. The Comptroller’s office recommends making a single transaction on the last day of the month with the corresponding “lost” leave code for the applicable leave(s) to be reduced, and keeping appropriate documentation to support the lost entry. The pay will need to be manually added to the payroll. Agencies must ensure that the combined amount of pay for the FFCRA paid leave provisions and the regular pay, paid as a supplement, does not exceed the employee’s authorized monthly salary.

Taxability

Paid emergency sick leave and paid family medical leave wages under these provisions are taxable income to the employees and are subject to federal income tax withholding as well as the employees’ share of payroll taxes under the Federal Insurance Contribution Act (FICA). However, before March 31, 2021, employers were not required to make the 6.2 percent contribution on these wages for the employer portion of Social Security under the FICA, although they had to make the required 1.45 percent contribution for the hospital insurance tax. Additionally, public employers were excluded from the provisions of the bill that provided tax credits for wages required by the FFCRA.

The provisions exempting wages paid in accordance with the EPSLA and E-FMLA from the employer’s share of Social Security under the FICA expired on March 31, 2021. Beginning April 1, 2021, employers are required to make the 6.2 percent contribution on these wages for the employer portion of Social Security under the FICA, in addition to the required 1.45 percent contribution for the hospital insurance tax.

The ARP provisions do not expressly exclude public employers from the provisions of the bill that provide tax credits for wages paid in accordance with the FFCRA for leave taken between April 1 and Sept. 30, 2021. An agency or institution that voluntarily offers paid leave in accordance with the FFCRA, as amended by the ARP, may be eligible to claim payroll tax credits to recoup the costs of providing the leave if it is determined to be an eligible employer.

Changes to this Document
Date Updates
04/30/2021 Updates related to American Rescue Plan Act
01/11/2021 Added note box about FFCRA extension