Latest FFCRA Information

What is the current status of the FFCRA?

The FFCRA officially ended/expired on 9/30/2021. 

The FFCRA provided paid sick leave and paid family leave for workers affected by COVID in certain qualifying areas. It was mandatory in 2020 and became voluntary in 2021.

What now?
If you were not providing the FFCRA in 2021, or if you stopped providing the FFCRA a while ago, you do not have to inform your team and nothing further needs to be done.

If you have been providing the FFCRA in 2021, inform your team that this benefit has ended. If you still have the FFCRA poster on display, go ahead and take it down, and save it with your other FFCRA documentation. Update your office protocols for what to do if someone has a COVID-related absence.

What if an employee is sick with COVID or has a COVID-related absence?
Your state or local jurisdiction may have a COVID-related special paid sick leave benefit in place. You may need to continue providing time off in accordance with this state or local rule.

If you are not covered by a state/local rule, then any time off would be unpaid unless the employee has regular vacation, PTO, or sick leave to use. Employees could also file for unemployment and they may or may not receive it.

Additional Historical Information:

  • The mandatory component of FFCRA ended on 12/31/20.
  • An employer may voluntarily choose to continue to provide FFCRA paid sick and/or family leave from 1/1/2021 through 3/31/2021 and receive the dollar-for-dollar payroll tax credits.
  • The American Rescue Plan Stimulus Package has further extended the FFCRA from April 1st 2021 through September 30th 2021

Note 1: the FFCRA amounts did not reset on January 1st. Meaning: employees do not have another 2 weeks (up to 80 hours) of FFCRA Sick Leave. If someone used up their FFCRA time in 2020, they cannot use any more FFCRA in 2021. See the FAQ below “What if I’m voluntarily continuing FFCRA and an employee already received some paid FFCRA leave in 2020?”

Note 2: the American Rescue Plan did, in fact, reset the FFCRA Sick Leave as of April 1st 2021. Meaning: employees who used up to 80 hours/2 weeks of FFCRA Sick Leave in 2020 or early 2021 will now have another set of 80 hours/2 weeks. The FFCRA Family Leave did not reset as of April 1st 2021, but there have been other changes, outlined below.

COVID Vaccine FAQs

Is the COVID vaccine required for my employees?

For information on state and federal COVID vaccine mandates, please visit this page.

My employees and/or patients want to know who has been vaccinated and who hasn’t, can I tell them?

No. This would be considered protected health information and is strictly confidential. There are a number of federal and state laws that protect against the disclosure of employee medical information in the workplace. Disclosure of this information could result in liability.

Your employees could respond with something like: “Gosh, I’d really like to share that with you, but we have decided as a company to be absolutely committed to compliance and privacy, both for our patients and our employees, so that’s just not something I can share with you.”

The emphasis here is on “we” so the individual employee is not seen as the bad guy, and also emphasizing that there are government regulations that the practice needs to follow. The employee could change the subject by asking “How do you feel about the vaccine?” (Not asking “have you been vaccinated” but rather just asking an open-ended question about what the patient thinks.)

A similar question from a patient could be “I don’t want to see someone who hasn’t been vaccinated.” This is hard to address without indirectly revealing private information about your employees.

In this case, we would recommend a response along these lines: “We are committed to your health, and we are following all required and recommended procedures to keep you safe. We recognize that everyone has to make their own personal decisions for their own health and safety, and we understand and support your decision either way.”

Do I have to pay for my employee’s time spent getting the vaccine?

If the employees are choosing to get the vaccination on their own, you do not have to pay for the time it takes for them to receive it.

If you have chosen to require the vaccination, then, yes, you would pay for the time it takes to travel to and from the vaccination site as well as the time to receive the vaccination. Therefore, if it takes them 45 minutes to wait and be tested, then you’ll add 45 minutes of pay, at their hourly rate, to the next paycheck.

What steps do I take if I require the vaccine and an employee requests an exception?

Handling these requests will depend on why someone is asking for the exception. If it is simply that they are an “anti-vaxxer” and don’t approve, or that they’re scared or apprehensive about taking it, or some other personal reason, then you simply need to determine if you will allow this exception or not. Keep in mind that fighting with someone on this issue may not be the best solution. This is why you should consider making the vaccine voluntary rather than mandatory.

On the other hand, if their reasoning is tied to a religious concern, a medical condition, or a disability, then you will need to go through what’s called a “good faith interactive process” in order to determine whether or not the person can be reasonably accommodated. This is because these types of concerns are protected by law and must be carefully managed. This process is fact intensive and is done on a case-by-case basis. It should also involve documentation throughout, which should be kept safe and confidential in case a lawsuit is filed against the employer.

We recommend you contact us to speak with an HR consultant in order to best determine how to manage your unique situations in order to prevent liability.

Can we require that any new employees who are hired at our office must prove that they have been vaccinated?

In simple terms, yes, you can. Employers can have a policy making vaccinations a condition of employment.

Sickness & Testing In The Workplace

What if an employee is sick with COVID or has a COVID-related absence?

If you have an employee sick or exposed to COVID, reach out to your local health department for the latest advice on testing, quarantining and return to work guidelines. 

How is an employee compensated for a COVID-related absence?

Your state or local jurisdiction may have a COVID-related special paid sick leave benefit in place. You may need to continue providing time off in accordance with this state or local rule.

If you are not covered by a state/local rule, then any time off would be unpaid unless the employee has regular vacation, PTO, or sick leave to use. Employees could also file for unemployment and they may or may not receive it.

Can I require a doctor’s note before a sick employee can return to work?

A doctor’s note should not be a prerequisite for returning to work, according to the CDC.

This is in part because this requirement would place a high burden on the healthcare system, and healthcare provider offices and medical facilities may not be able to provide documentation in a timely fashion.

Though the CDC’s guidance urges against requiring a return-to-work note, if the employee’s illness is a “serious health condition” under the FMLA (applicable to employers with 50+ employees within a 75-mile radius), the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation, including, among others, notifying the employee in the initial determination that fitness-for-duty notes will be required and consistently applying the requirement to all FMLA leaves.

Tell me all about COVID testing for my employees!

Whether COVID testing is required by a federal, state, or local mandate, or is something the employer is implementing as part of their safety measures, it is not something employers should take lightly or without proper planning. 

If COVID testing is going to happen, the employer must ensure that the testing procedure is legally compliant, reliable, and effective. In part, employers must:

  • Select the right test
  • Document the process
  • Ensure confidentiality
  • Determine how a positive test will be handled

If/when you do require a COVID test, then following must be considered:

Who pays for the COVID test?

As always, “it depends.”

If the employee initiates the test entirely on their own, or their treating physician orders it, or the employee is instructed to get tested by the health department, then the employer is off the hook.

If you, as the employer, require a COVID test, even as part of a federal, state, or local mandate, then you have to pay 1) for any out-of-pocket cost associated with getting the test (see below regarding health insurance), and 2) the employee’s hourly wages while traveling to the clinic, waiting in line, being tested, and returning.

Language is important: if you say someone “should” get tested, or you “encourage” them, or you say “it would be a good idea,” or if you make a negative test result a requirement for returning to work, this is the same as you “requiring” the test.

Be proactive about testing: Do your research now:

  1. Figure out where testing can happen in your area and how it works.
  2. Pick one or two labs with good reputations.
  3. Establish a working relationship.
  4. When your employees are seen there, the bill should be sent to your office.
  5. Decide how employees will report their time to you (paper timesheet, digital timeclock.)

If you are requiring the test, and your office provides a group health insurance plan, and employees just have a copay for COVID testing, you would be responsible for the copay and not the entire test.

If you are requiring the test, and your office does not provide health insurance, then employees should not be using their personal health insurance for the COVID test. Your office should be paying for 100% of the cost.

Don’t hesitate to reach out if you have questions regarding your unique situation. We are back to normal response times for calls and requests.


Please note: the information below is provided for historical reference purposes only. Some of the details may have changed since they were initially written. To access the information, click here.

Miscellaneous FAQs

Should I opt to do the voluntary FFCRA for 2021?
  • It’s completely the employer’s choice.
  • It is important to be consistent with your employees. You should not voluntarily provide it to only a select few and not others.
  • If you continue to provide FFCRA paid leave, it must be administered the same as it was under the mandatory regulation, and also administered under the new provisions of the American Rescue Plan.
  • One thing to consider: if an employee is sick or under a mandatory quarantine, you don’t want that person in your office. So if they are going to be off anyway, providing it and receiving the tax credits can be a good solution for you and your employee.
Can I voluntarily offer only FFCRA Sick Leave but not Expanded Family Leave?
  • Yes.
  • If you choose to split the FFCRA and only offer a portion of it, please be sure your employees are notified of how you are applying FFCRA leave from 01/01/21 through 09/30/21.
What if an employee has to be off for an FFCRA qualifying reason, but they do not have FFCRA leave hours available, whether because it was used up or because I did not voluntarily choose to continue it?

You will follow the same protocols you always have for an employee who is missing work due to illness.

  • Time off can be unpaid.
  • Time off can be paid using any accrued and unused vacation, paid time off (PTO), sick leave or other benefits provided by you, if applicable.
  • It may be paid under other state law mandates such as New York’s COVID-19 Sick Leave, California’s COVID-19 Sick Leave, Colorado’s Public Health Emergency Leave, or other state/city rules that may apply to you.
  • In some instances, depending upon the state, time off could qualify for unemployment insurance if the employee is approved by the agency charged with making these decisions.
If I choose to continue FFCRA, what do I need to do?

You should decide soon and make a formal announcement to your employees. Employees will likely hear about this from other sources, so it is best to set the record straight immediately so as to avoid confusion later.

If you’re going to offer EPSL or EFMLA or both, and you’re one of our clients, reach out to us for a new policy and new FFCRA forms. You will want to provide the new policy to your employees so that they understand what’s available to them. Then, if someone takes FFCRA leave, you will need to use the new forms in order to ensure you can document and receive your tax credits.

If you’re going to offer EPSL or EFMLA or both, be sure to administer it exactly as required. Though this is voluntary, all the rules apply for administration purposes.

For help on administering FFCRA, check out our FFCRA How-To Guide here.

What if I’m voluntarily continuing FFCRA and an employee already received some paid FFCRA leave in 2020?
  • The total maximum of FFCRA sick leave allowed is 80 hours/2 weeks between April 1st 2020 and March 31st 2021. The FFCRA sick leave then resets as of April 1st 2021 and allows another set of 80 hours/2 weeks between April 1st 2021 and September 30th 2021.
  • The total maximum for FFCRA Expanded Family Leave is up to 12 weeks in total and can be used intermittently. It does not appear as though Family Leave resets as of April 1st 2021.
    • Employers with less than 50 employees: for employees that have used up their maximum available family leave, they are not eligible to receive more paid FFCRA Expanded Family Leave in 2021. For employees who have not used up the entire amount of FFCRA Expanded Family Leave, then they are still eligible to take qualified leave for any remaining family leave hours from 01/01/21 through 09/30/21.
    • For employers with 50 or more employees: Expanded Family Leave is tied to regular FMLA, therefore, the new year may restart the clock on the 12 weeks of allowed (and protected) time off under FMLA (and/or state leave laws). If this is not the case and an employee has not used up the entire amount of FFCRA Expanded Family Leave, then the employee can access what’s left from 01/01/21 through 09/30/21.
If I’m not continuing FFCRA, what do I need to do?
  • Announce to your employees that paid leave under the FFCRA expired 12/31/20 and/or your voluntary FFCRA leave will end on March 31st 2021.
  • Update your manual (if you haven’t already). We removed the FFCRA policy in December.
  • Ask employees to review the updated manual and sign an acknowledgment form.
  • Remove the FFCRA poster.

In addition, be sure your employees know how time off will be handled if they have an issue related to COVID-19. This can include any of the following:
1. It may be unpaid.
2. It may be paid using any applicable benefit provided such as sick leave or vacation or paid time off.
3. It may be paid under other state law mandates such as New York’s COVID-19 Sick Leave, Colorado’s Public Health Emergency Leave, California’s COVID-19 Sick Leave, or other state/city rules that may apply to you.
4. It may be covered by unemployment insurance benefits.

Has anything changed with FFCRA under the new Relief bill?

We are now dealing with two different time periods:

  1. From January 1st 2021 to March 31st 2021, the voluntary FFCRA is essentially the same as the FFCRA in 2020.
  2. From April 1st 2021 to September 30th 2021 there are many details and specifics that are different. If you are choosing to offer FFCRA during this time period, you will need to follow the new guidelines. You can refer to our FFCRA How-To Guide for the latest information.

In addition, one big change is EFMLA eligibility: the 12 weeks of EFMLA can now be used for all 9 reasons, not just the school/daycare reason.

My local (county/city/state) health department has asked me for a list of my employees who will be taking the vaccine. Should I keep a copy of this list for my records? Should I also keep a list of the employees who declined the vaccine?

We have learned that this is how some health departments are rolling out the vaccine. If this is the case for you, it is recommended that you inform your employees of the health department’s procedures so that they know it is available and how it will work. Also, share with them that participation is voluntary. Then ask them to inform you of their desire to be put on the list that will be shared with the health department. If appropriate, provide a deadline for getting back to you.

There is no need to keep the documentation once it’s provided to the health department, nor would you need to keep a list of who didn’t participate. If you do decide to keep this information, be sure it is kept in their confidential and secure medical file.

Are there additional resources that I can check out?

Yes, there is the World Health Organization. Here is a link to their webpage specific to Coronavirus.

You may also want to check out information provided by OSHA. Here is a link to their webpage specific to Coronavirus.

Click here to download and read OSHA’s pamphlet on preparing workplaces.

Click here to download a quick guide from the CDC and use it to post in the workplace or handout to employees.

Employers also should consider reviewing pertinent guidance from state and local public health authorities on appropriate responses to exposure risks, especially as situations change. Click here for resources by jurisdiction.

Closing and Reopening The Business

Should I have all of my employees sign a waiver of liability related to COVID-19 before coming back to work?

Our current position on having employees sign some type of COVID-19 liability waiver is: we question the value of these waivers and we question how much protection they would provide.

What you need to focus on is ensuring workplace safety and following the latest CDC, OSHA, public health, and ADA guidelines and protocols. The best way to protect yourself is to proactively engage all employees in being involved with and requiring them to take all precautions through training, orientation, and reminders.

Peace of mind will come from knowing you are doing all of those things right; not from a signed form or letter.

If it can be shown/proven that you were negligent, remiss or ignored taking all of the necessary steps/precautions to ensure a safe work environment (or essentially were using the waiver as a “get-out-of-jail” card to not do those things), then a signed letter or waiver is not going to help.

It’s also worth considering the message you send by having all employees sign a document like this, especially if other employers are not.

From an HR perspective, COVID-19 carries similar risks as other diseases that might be contracted in the workplace and liability waivers have not been viewed as valuable or beneficial.

If you are (or have been) taking all of the necessary steps, and an employee contracted COVID-19, it would be hard to make the case that you were negligent or personally responsible for the transmission.

Additional resources can be your worker’s compensation and liability insurance carriers.

My employee doesn't want to come back to work due to receiving higher unemployment wages than regular wages. What should I do?

In addition to the information below, please review our Reinstatement Guide.

On one hand, we can all appreciate the dilemma that these employees are in. We certainly don’t want them to start working the limited hours that are available and lose their unemployment benefits, resulting in a huge drop in their overall income. Especially if it is unclear when they will be able to get back up to full capacity work.

On the other hand, the special $600 unemployment benefit will not last forever—it ends July 31st—nor will regular unemployment benefits. Employees can roll the dice on the future and turn down employment at your office, hoping to earn unemployment benefits for some number of weeks or months, and then return to the workforce. However, when that time comes their employment opportunities may not be as plentiful as they think. This is their dilemma to navigate, not your problem to solve.

Consider working with your employees to solve the problem. As long as the $600 ‘kicker’ is in place, the goal is having your employees receive weekly compensation from you that doesn’t exceed their weekly unemployment. Therefore, they work for you (benefiting them and you); they still qualify for unemployment; and they still receive the extra $600.

Perhaps you can spread the hours among several employees so that each person is working, yet is still eligible for unemployment benefits.

When you need someone back at full capacity, they should recognize the opportunity and return to work, even if this means a slight drop in their total compensation. If they refuse, then they are effectively resigning their position.

I don’t have enough available work to bring all of my employees back at full capacity. How do I decide who gets the hours?

Similar to raises and promotions, this process carries the risk of favoritism, as well as discrimination claims.

You’ll want to make sure that you have objective, clear, documented reasons for who returns to work and who receives the hours. One example is seniority: employees with the most seniority receive the most hours. Other examples could include employees who are cross-trained in certain areas, individuals with special licenses/certifications, or full-time employees returning to work before part-time employees.

As always, you want to avoid decisions (and the appearance of decisions) based on protected classes, such as age, race, sex, religion, color, national origin, pregnancy status, etc.

What paperwork is needed to bring an employee back to work?
Did you do a…..? Meaning: Are you changing their employment details? Necessary Form(s):
“Furlough” The person stayed “employed” with you, they stayed on payroll, you did not end their employment No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter Basic
Yes. Their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
“Temporary Layoff” The person stayed “employed” with you, they stayed on payroll, you did not end their employment No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter Basic
Yes. Their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
“Temporary Layoff” The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter For Job Changes
Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
Full Layoff/Termination The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc. Full new-hire paperwork, as if they were a new employee.
My employee is scared to come back to work, or my employee is in a high-risk category, what do I do?

In addition to the information below, please review our new Reinstatement Guide.

First, engage in a dialogue with the employee about their reasons. Are they worried about contracting the virus from a co-worker? Or a patient/customer? Do they have someone in their household who is high-risk? Find out what could be done to alleviate their concerns. Would additional PPE make a difference? Or more space between workstations?

Second, make sure that your office is following the latest OSHA, CDC, ADA, and public health recommendations and requirements. You may need to update some of your SOPs and make physical changes to your office.

If you have done everything above, and an employee is absolutely unwilling to return to work regardless of any and all accommodations, then this may need to be treated as a leave of absence or voluntary resignation depending on your state. Due to the potential ramifications of this, we would recommend speaking with one of our HR Specialists before taking your final action.

Also, be careful about making safety decisions for your employees. This is usually done with good intentions to protect your team. However, this can easily lead to a discrimination claim. For example, if you have 4 employees under the age of 40, and one employee in her 60’s. While you gradually increase the business level back to normal, you tell the older employee to stay home and stay safe, while allowing the younger employees to return to work. This can result in an age discrimination claim.

If an employee is high-risk or doesn’t want to work for some reason, we strongly recommend speaking with and HR Specialist before ending employment or taking a strong stance against the employee.

Closing the office or cutting back to emergency-treatment only

The American Dental Association (ADA) as well as many state dental associations have recommended that dental practices close for non-emergency procedures. This has prompted many questions. All of the information below also applies if you cut back your work hours significantly, but are technically still “open.”

For our non-dental clients, the information below applies to you as well if you have been ordered to close, or if you choose to close, or some entity recommends that you close.

If you haven’t already, please review our Coronavirus FAQs which are constantly being updated as this unfolds.

If the business needs to close entirely, or limit the work hours, you are not required to pay non-exempt employees for the time they are out. If you choose to pay people for some or all of the time off, as a special bonus, you absolutely can. For the payment of wages to exempt employees, please see our FAQs.

Using PTO/Sick Leave/Vacation:

In a closure or limited-hours-situation, if employees have PTO/Sick/Vacation available, please refer to our Coronavirus FAQs about the usage of these benefits. It depends on your state and your particular situation.

Unemployment & Laying Off Employees:

Employees are able to file for unemployment during any business closure or time of reduced scheduling.

If you are temporarily laying off employees, and they will be doing absolutely no work at all, we recommend using our Temporary Layoff Letter.

If employees are still working on an on-call basis only, you can use the temporary layoff letter and state that in the document.

If employees are still working, doing projects, online training/CE, and other duties, then they are not laid off. You can use our Status/Benefit Change Notice form to document the drop in work hours and the change in duties.

Every state is different in how their unemployment department works. Some states take into account vacation/PTO/sick pay, others do not. Some have a waiting period and some do not. If you or your employees have specific questions about unemployment, please contact your department directly for the most accurate and up-to-date information.

Temporary Layoff Letter


Let your employees know the situation and that you will be cutting back on hours or closing altogether. Encourage them to apply for unemployment. Depending on your state and your benefits, as well as your financial position, you can determine whether PTO/Sick/Vacation can be used. See our other FAQs on this topic.

Other Projects:

If you are not seeing patients or customers, you can consider having employees work on projects or other tasks. Of course, this depends on your financial position, given that you will not be producing revenue during this time.

Federal Stimulus Package:

There has been a lot of talk in the past couple days about a federal stimulus package that includes paid sick leave and paid family leave. The House passed a bill, and the president has sought stimulus funding as well. However, none of this has been finalized and everything is subject to change.

Until an actual bill has been approved by the House, Senate, and signed by the President, there is nothing for anyone to do. Speculation and rumors are not helpful. Until something is finalized, any income for employees will have to come from wages, paid time off benefits (PTO/Vacation/Sick Leave), or from unemployment benefits.

My business has to close and/or reduce hours. Do we have to pay employees?

If the employer believes it is in their best interest to close the business, for any reason, but particularly for something like a Coronavirus/influenza outbreak, then they have the right to take that action. Similarly, if the business is required to be closed by some agency or entity, the following also applies.

Whether or not the employees are paid while off work will depend on their exempt/non-exempt status.

Exempt employees:

If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the exempt employee for full-day absences only, provided no work of any kind is done during the course of the day, even from home, like checking and answering emails.

If the absence is initiated by the employer (e.g., the employee must stay home for a mandatory quarantine period, even though he or she is asymptomatic and willing to come to work, business closure), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week so long as no work is performed during that entire absence.

Non-exempt employees:

Pay may be docked for any and all non-work time.

If we close the business temporarily, can employees file for unemployment insurance?

Yes. Given the circumstances, the individual will likely be eligible for benefits. There is always a waiting period before benefits will be paid out, however. If an employee has not otherwise satisfied the required waiting period, then this will need to occur first and payout will begin. Waiting periods vary from state to state and are generally 1-2 weeks.

How does health insurance work if we close the business temporarily?

We recommend that you start by contacting your carrier about this. The answer to this question depends on how many employees you have, the way your particular plan is written, what your eligibility criteria is, how long your closure lasts, your particular state leave of absence laws, and may depend on the outcome of the stimulus package (see the FAQ above on the Federal Stimulus.)

If you are only closed for a couple weeks, nothing will change or be adjusted. If the closure is longer, there may be some implications based on the variables above.

Can the use of paid time off benefits (vacation, PTO, sick time) be used when an employee is off work?

In general, yes, employees may substitute any paid time off benefits for unpaid time, as applicable for each employee.

If employees have available Sick Leave, PTO, or Vacation, are we required to let employees use that time if they are off?

This could be as a result of them choosing to be off or because we mandate them to be off due to business closure. We are concerned about the financial impact given that we won’t have revenue coming in.

Generally speaking, you are not required to pay out these benefits to employees in these circumstances. More than likely, employees will request at least a partial usage/payment depending on the timing. You may want to review your policy manual in case there is specific language one way or the other.

Given the extreme nature of the current situation, we would recommend not taking a hard stance, and being as flexible as possible. If you can work with employees and pay them for some or all of the time, without it having a detrimental impact on the business financials, that would be ideal.

If you are governed by a city, county, or state with mandatory sick leave or other paid leave rule, then you may be required to payout those benefits even if it is your preference to not, depending on the circumstance that led to the employee being off. For example, an employee who is sick and stays home would have the right to use sick leave benefits. Whereas an employee who stays home just because it is their preference would likely not qualify.

Can the employer use paid time off benefits (vacation, PTO, sick time) when an employee is off work due to COVID-19, whether initiated by the employee or the employer?

In all states and cities or counties that do not have mandated sick leave laws, yes, employees can be required to use these benefits during periods of non-work.

In states and cities or counties that have mandated sick leave laws, the use of sick time may not be mandated if the absence does not qualify for sick leave usage. However, employees could choose to use sick time voluntarily. If the reason for the absence qualifies under the sick leave rule, then it is allowable for the employer to require the use of available sick time.

Can employees refuse to come to work?

The Occupational Safety and Health Act contains a “General Duty” clause which requires employers to provide a workplace free from recognized hazards that are likely to cause serious harm or death. Also included within this clause is the ability for employees to refuse to work if certain conditions apply.

The circumstances in which an employee can refuse to work are limited. Employees may refuse to work only if all of the following apply (a) they reasonably believe that doing the work would put them in serious and imminent danger; (b) they have asked their employer to fix the hazard; (c) there is no time to call the Department of Labor’s OSHA Administration; and (d) there is no other way to do the job safely. It is important to note that an employee is not protected for simply walking off the job.

In general, if an employee refuses to work because s/he believes in “good faith” that s/he is in imminent danger, it is his/her protected right to do so. “Good faith” means that the worker had reasonable grounds to believe imminent danger existed, even if that danger isn’t found to exist.

Although it is entirely possible for an employer to impose disciplinary measures to an employee for refusing to come work, taking that action may be ill-advised given the protections employees have. As a matter of practicality, it may be best for everyone involved if the employer allows for some flexibility during an influenza outbreak such as the Coronavirus.

Each situation will need to be handled on a case-by-case basis. For example, employees refusing to come to work because another co-worker had close contact with a family member who was sick with the Coronavirus may have a “good faith” belief that danger exists. On the other hand, simply refusing to work because the Coronavirus had materialized in the same city probably does not qualify.

Past Legislation

New California Supplemental COVID-19 Sick Leave

Effective September 9, 2020 – New California Supplemental COVID-19 Sick Leave

Applicable Employers:

  • ALL healthcare providers
  • ALL employers with 500+ employees

On September 9, 2020, Governor Newsom signed AB 1867, a bill that requires covered employers to provide COVID-19 supplemental paid sick leave to their employees for certain qualifying reasons. This bill went into effect immediately.

A little history…

On April 16, Governor Gavin Newsom signed Executive Order N-51-20, creating a COVID-19 Supplemental Paid Sick Leave that requires employers, who are covered by Industrial Welfare Commission Wage Orders 3, 8, 13 and 14, Health & Safety Code section 113789 and have 500 or more employees, to provide up to two weeks (80 hours) of supplemental paid sick leave to food sector workers unable to work due to COVID-19.

AB 1867 broadly expands the paid sick leave coverage to the following:

  • All health care providers and first responders whose employers elected to exclude them from the Families First Coronavirus Response Act (FFCRA) leave requirements, regardless of the number of employees.
  • All employers with 500 or more employees in the United States must provide this benefit to their California employees.

Must be provided beginning no later than September 19, 2020.

COVID-19 Supplemental Paid Sick Leave remains in effect until December 31, 2020, the same date that the federal law that provides supplemental paid sick leave is set to expire. However, if the federal law is extended, then COVID-19 Supplemental Paid Sick Leave under California law will be extended to the same end date as the federal law. If the law expires while a worker is taking COVID-19 Supplemental Paid Sick Leave, the worker can finish taking the amount of leave they are entitled to receive.

The California Division of Labor Standards Enforcement (DLSE) has issued guidance on the new COVID-19 supplemental paid sick leave requirements. Click here for a link to their FAQs which answers employers’ common questions about coverage, eligibility, calculating leave amounts and pay, and how previously provided paid sick leave under local ordinances, for example, maybe credited toward the new law’s requirements.

The DLSE has also issued two model posters that employers may use to comply with the new law’s notice requirements. One for food sector workers, and a second for all other covered employers. Employers can download the posters and distribute as appropriate. Click here for the non-food sector poster.

Covered employers must display posters in a conspicuous place that informs employees about COVID-19 supplemental paid sick leave, but if an employer’s eligible workers don’t frequent a workplace, the employer may send the notice through electronic means (e.g., email).

Finally, employers outside of the food sector will need to update their wage statements to provide employees notice of the amount of COVID-19 supplemental paid sick leave available each pay period under the new law.

Information about PPP Loans

Update: 5/5/2020

Here is some useful FAQ information from the Treasury Department.


Congratulations on being one of the lucky ones to receive PPP loan funding.

First and foremost, think of your PPP loan as just that—a loan, with very favorable terms. Use the funds with discretion and make sound business decisions. In particular, don’t get too caught up in the PPP forgiveness aspect and make bad staffing decisions that can haunt you moving forward.

Unlike any other business challenge you may have faced in the past, this one is unique because of all of the moving parts you have to simultaneously consider, like: grants; EIDL loans; PPP loans; PPP loan forgiveness; state and local mandates; CDC/OSHA/ADA guidelines, recommendations and requirements; scarcity of supplies (PPE’s); FFCRA compliance; unemployment wrinkles; employee availability (school & day care closures); and a plethora of other issues that we may now refer to as the “new normal” that we have to contend with. And above all else is the ongoing health and safety of your patients/customers and employees.

While your PPP loan is designed to be principally used for payroll, rent and utilities, it can be used for anything you want to use it for. The PPP loan forgiveness provisions, however, are only applicable when PPP funds are used for the approved expenses (with at least 75% going to payroll) during the 8-weeks from funding, and only if, by June 30th, your wages are back to at least 75% of what they were on February 15th, and your staffing level is equal to what it was on February 15th.

It does not make good business sense to use PPP funds and pay employees a full or partial wage to stay home and do nothing, just to meet the forgiveness provisions.

Employment to work on projects, call patients, and do online CE could be a good use of PPP funds, but this may risk adherence with the “emergencies-only” and certain shelter-in-place orders—again lots of interlaced moving parts.

Naturally, everyone is excited about the forgiveness possibility with PPP loans, and that is very enticing. However, the allure of forgiveness is not worth making an unintended mistake, or doing something that could lead to liability in another area.

Families First Coronavirus Response Act (FFCRA): Sick Leave & Paid Family Leave (HR6201)

Update 7/27/2020:

We have made significant updates to our FFCRA How-To Guide based on the latest information from the Department of Labor. Please refer to the Guide for the latest information.


Update 5/20/2020:

We have created a new FFCRA How-To Guide that will take you step-by-step through this process. It includes the information below. Please check it out!


Update 5/5/2020:

There’s been a lot of talk about a “small business exemption” from the new Families First Coronavirus Response Act (FFCRA). Information is coming from a number of sources and causing confusion. We want to address some of those aspects and hopefully create some clarity for our clients.


  • Yes, there is a possible exemption for employers who have fewer than 50 employees.
  • This exemption is only applicable to qualifying reason #5…when the reason for needing paid sick or family leave is due to “child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reason.” Paid sick or family leave for other reasons is still applicable at all times.
  • The exemption is not automatic. Unlike other laws, the exemption is available and can possibly be applied, but it is not a given.
  • No other exemption exists.

Do you qualify for an exemption? Here’s the criteria:

  • When providing sick or family leave would jeopardize the viability of the small business as a going concern.
  • A small business may claim this exemption if an authorized officer of the business has determined that:
    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

A few things to consider:

  • The FFCRA is in effect from April 1, 2020 to December 31, 2020. While you might be able to claim exemption now, that may not always be the case once you are back up and running later this year.
  • If you are currently closed and have all employees on layoff status, meaning they’re not working any hours at all, FFCRA is currently not applicable. It will only be an issue later once your employees begin working again, whether full or partial schedules.
    • Once you resume normal operations, is it really possible that providing paid sick or family leave would “jeopardize the viability” of your business?
  • You are reimbursed for any paid sick or family leave expenses you incur.
  • Claiming exemption can cause liability. An employee can file a claim against you and challenge your assertion. The Department of Labor has been pretty clear that the burden of proof will be on the employer. Do you really want that liability? Is 80 hours of sick leave or $200.00 a day for family leave, which is completely reimbursed to you, really worth it in the long run?

If you decide to move forward with exemption, you should carefully and thoroughly document why your business meets the criteria set forth and keep it for at least four years. You do not send any materials to the Department of Labor.


Claiming Tax Credits:

The IRS has released details about claiming tax credits for the use of paid sick leave and paid family leave under HR6201. Here is the information.


The Department of Labor updated their FAQs about HR6201, the federal bill that passed recently.

This update provided additional information that is important and may be applicable to you. As always, don’t hesitate to reach out if you have questions regarding your unique situation.

On Friday April 3rd we did a webinar that touched on HR6201. Here are the recordings:

Part 1 of the webinar.

Part 2 of the webinar.

One requirement of all employers as part of HR6201 is displaying and/or distributing the following poster to the employees. Here is a special FAQ just on the poster.

Note: it has become clear that defining your employees’ status moving forward is important.

Category 1: Employees Who Remain Employed and Working

These are employees who continue to work their normal schedule or a reduced schedule. They may be working from home or the office. The key distinction is they are still working, and, therefore, an employee. They are not laid off or terminated.

Category 2: Employees Who Are Not Working

They may be on a furlough (or temporary layoff) or a permanent layoff (employment has ended) due to certain economic conditions or because the work place is closed for a few weeks or a few months. These employees are not scheduled to work at all.

Please look over the updated DOL FAQs with the above categories in mind, particularly questions 18 – 28.

Generally speaking, the paid sick leave and paid family leave requirements of HR6201 apply to Category 1 employees only, and thus do not apply to Category 2 employees.

Quick Facts:

  • Became effective April 1st 2020
  • Expires December 31, 2020
  • It is designed to provide interim temporary relief, not long-term help
  • It has two principal components: 1) sick leave and 2) family leave

To qualify for Sick Leave the employee must be:

  1. Subject to federal, state, or local quarantine, or
  2. Advised by a healthcare provider to self-quarantine, or
  3. Experiencing symptoms and seeking diagnosis, or
  4. Caring for an individual who is subject to federal, state, or local quarantine, or
  5. Caring for son(s) or daughter(s) if school/child care facility is closed or child care provider unavailable, or
  6. Experiencing any other “substantially” similar condition specified by HHS in consultation with the Treasury Department or Department of Labor

** These are the only qualifying criteria for this sick leave, no other condition, circumstance or situation qualifies for this particular sick leave benefit.

** The maximum amount of sick leave is 80 hours for a person working 40 hours per week; otherwise prorated based on average work hours.

** Sick leave pay is = normal wages up to $511 per day for numbers 1-3 above

** Sick leave pay is = 2/3 wages up to $200 per day for numbers 4-6 above

Paid Family Leave:

Employees must have worked 30 days with the employer to qualify.

** The family leave requirement only applies to criteria 5 and 6 above

** If qualified, an employee can receive up to 12 weeks of leave

** The first two weeks are unpaid

** The remaining 10 weeks’ pay is = 2/3rds normal wages up to $200 per day [$10,000 in the aggregate.]

For now, we are recommending that offices do what is best for them, their employees, and their patients right now in this moment. If the best thing is for you to take care of emergency patients, continue to do that. If it’s best to close your practice entirely and temporarily lay off your employees, then go ahead and do that.

If you need to lay off employees temporarily, please use our form here: [link]

The CARES Act Information

The CARES Act contains provisions that are mostly outside the HR compliance scope. The bulk of the provisions that affect our clients have to do with expanded unemployment benefits (handled by your state unemployment department) and small business loans (coordinated through the Small Business Administration.)

We did a webinar on Friday April 3rd that touches on the CARES Act. You can view it here:

Part 1 of the webinar.

Part 2 of the webinar.