Paid Sick Leave Options Available to Employers

There are many different relief options that employers can utilize to ensure that their employees receive compensation while dealing with COVID-19, one of which is paid sick leave. This can be used by employers who do not have a sick pay policy, and many employers are entitled to the paid sick leave option. Below are the details you need to know to see if you qualify as an employer, what amount you can pay your employees and how to calculate the related payroll tax credit.

The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave and expanded family and medical leave for reasons related to COVID-19 that occur from April 1st through December 31st, 2020. Covered employers are certain public employers and private employers with fewer than 500 employees. All employees of a covered employer are eligible for two weeks of paid sick time for reasons related to COVID-19. If the employee has been employed for at least 30 days, then they are eligible for an additional 10 weeks of paid family leave to care for a child during COVID-19 circumstances. If the employer is a small business with fewer than 50 employees, the employer may qualify for exemption from the requirement to provide leave when childcare is unavailable if the leave would jeopardize the business, but is still required to provide paid sick leave to employees to care for themselves.

The FFCRA allows employees of covered employers the following leave:

Two weeks (up to 80 hours) of paid sick leave to care for self. This is used when the employee is unable to work or telework because they are (1) subject to a quarantine order related to COVID-19, (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19 or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis. The employee is entitled to the greater of their regular rate of pay, federal minimum wage in effect during the Fair Labor Standards Act or the applicable state or local minimum wage. The max amount the employee is entitled to is $511/day or $5,110 total over the entire paid sick leave period.

Or two weeks (up to 80 hours) of paid sick leave to care for another. This is used when the employee is unable to work because they are (1) caring for an individual who is subject to quarantine order or an individual advised by a health care provider to self-quarantine due to COVID-19 concerns, (2) caring for their child whose school or childcare provider is closed due to COVID-19 related reasons or (3) experiencing any other substantially similar conditions that may arise by the Secretary of Health and Human Services. Employees utilizing this leave are eligible for pay of 2/3 the greater of the amounts listed above. The max amount the employee is entitled to is $200/day or $2,000 over the entire two-week period.

And up to an additional 10 weeks of paid expanded family and medical leave, when the employee is unable to work because they need to care for a child whose school or childcare provider is closed due to COVID-19. In order for an employee to use this, they must be employed for at least 30 days and have taken paid sick leave for the first two weeks of the leave period or have used vacation, personal leave, medical/sick leave or unpaid leave offered by the employer. The ten weeks will be paid at the greater of 2/3 of the employee’s regular rate of pay, but not to exceed $200/day or $12,000 for the 12 weeks (that includes both sick leave and expanded family and medical leave). If the employee takes employer provided leave for the first two weeks, they are entitled to the full amount of pay, even if greater than $200/day, during the two-week period.

It is important to determine what the employee’s regular rate of pay is when determining the amount to pay during the sick leave. To calculate, employers should take the average rate of pay over a period of up to six months and include any commissions and tips that the employee receives. In addition, employers will need to pro-rate the allowed sick pay leave for part-time employees. Part-time employees should use the average number of hours that they work over a typical two-week period.

If employers have an employee who will be utilizing the FFCRA leave, employers must document it. At a minimum, employers should document the employee’s name, dates for which leave is requested, the reason for the leave and a statement from the employee that they are unable to work because of the reason. If the leave is requested because they are subject to a quarantine order or advised by a health care provider, employers should document the name of the entity or health care provider who is issuing the quarantine order. Lastly, if the employee requests leave due to caring for a child whose school or childcare is closed, employers must also document the name of the child being cared for, the name of the school or childcare facility and a statement from the employee that no other suitable person is available to care for the child.

Covered employers who are utilizing paid leave options are eligible to claim a refundable tax credit on their quarterly Form 941 to help cover the costs of providing paid sick and family leave wages to their employees for COVID-19 related reasons. The credit is equal to the required paid sick leave amount (up to the daily maximum established), the employer’s share of Medicare tax imposed on the wages and its allocable cost of maintaining health insurance for the employee during the sick leave period. In addition, the employer is not subject to the employer’s portion of social security tax imposed on those wages paid. However, the employee is still required to pay their portions of Medicare tax and social security tax on these wages. It is important to note that the employer can pay the employee more than the max amounts stated above. However, they will only be able to claim a credit for the max amounts set forth in the FFCRA.

The costs of maintaining health insurance for the employee during the sick leave period is referred to as qualified health plan expenses. These are amounts paid or incurred by the employer to provide and maintain a group health plan. This includes the cost paid by the employer and the cost paid by the employee, if it is a pre-tax plan. If the health insurance is an after-tax contribution, the employee contribution is not included and only the employer contribution is used. Employers may use any reasonable method to determine and allocate the plan expenses to use for the credit, such as (1) the COBRA premium for the employee from the insurer, (2) one average premium rate for all employees or (3) a substantially similar method that takes into account the average premium rate determined separately for employees with self-only and other than self-only coverage. Allocate the health plan expenses for the number of days the employee received sick pay wages. The amount of health plan expenses does not include employer contributions to HSAs, Archer MSAs or QSEHRA.

Covered employers can reduce their Form 941 deposit by the credit amount. If the amount of the credit exceeds their Form 941 deposit, the excess is treated as an overpayment on Form 941 and refunded to the employer. If employers do not want to wait to receive their refund after filing Form 941, they can file Form 7200 Advance of Employer Credits to COVID-19, to receive an advance payment at the time their credit exceeds their Form 941 payment. Any credit received should be recorded as Tax Credit Income on the employer’s financial statements.

The quarterly Form 941 for second, third and fourth quarter 2020 has been updated to account for COVID-19 payroll relief options. Employers should verify they are using the correct form to properly account for these items. Also, if using a payroll software, employers should create separate pay items for each type of paid leave. This will help summarize the information needed for the quarterly and annual reports.

In summary, employers can continue to utilize paid leave options throughout the remainder of 2020. This paid leave is funded through a credit the employer can receive against their Form 941 liabilities. If you have any questions related to COVID-19 payroll relief options, please contact your MHCS advisor.