FFCRA & FMLA FAQs

The Family and Medical Leave Act has always been complex and confusing. When the topic comes up, questions seem to automatically follow.

Below is a list of the frequent questions our experts get asked. If you don't see your question answered below, the Personal Assistant feature in FMLA Manager is a great resource to have in your back pocket. It's like having your very own FMLA assistant on staff!

Start Tracking Leave Today

Families First Coronavirus Response Act (FFCRA) FAQs

No. The mandate to provide the paid leave ended on December 31, 2021. The Continuing Appropriations Act provided that, from January 1, 2021 to March 31, 2021, employers could voluntarily provide the leave and receive the tax credits. The American Rescue Plan Act (ARPA) then provided that employers could continue to voluntarily provide the leave until September 30, 2021 and receive the credits.

Yes, it has the emergency paid sick leave (EPSL) and the expanded family and medical leave (EFML). The two leaves are intertwined but also need to be looked at separately.

Under the FFCRA, employees may take ESPL or EFML if they are unable to work or telework due if they:

  1. Are subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. Are caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine.
  5. Are caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. Are obtaining a COVID vaccination.
  7. Are recovering from an injury, disability, illness, or condition related to the vaccination; or
  8. Are seeking or awaiting the results of a COVID test or medical diagnosis if they have been exposed or the employer has requested the test or diagnosis.

Employees may take up to 10 days of FFCRA leave for the qualifying reasons listed except for #5, and up to 12 weeks of leave for reason #5. In the past, employees could take EPSL only for the original reasons (which did not include reasons 6 – 8; these were added by the ARPA.

Employees are entitled to classic FMLA leave if they (or family members) have a serious health condition. Whether COVID-19 is a serious health condition will depend upon whether it meets the definition.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider. Inpatient care is generally an overnight stay in a health care facility. Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.

A serious health condition involving continuing treatment includes the following:

  • A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves -
    • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
    • Treatment at least once, resulting in a regimen of continuing treatment.
  • Any period of incapacity due to pregnancy or for prenatal care.
  • Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time. These may cause episodic rather than continuing periods of incapacity.
  • A period of incapacity for a permanent or long-term condition in which treatment may not be effective.
  • Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis), for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment.
  • Obviously, not all parts of the definition will apply to a given situation. A COVID-related condition might, for example fall under the first bullet. Just being quarantined does not necessarily mean you have a serious health condition. Nor does actually contracting the disease. It needs to meet the definition.

You should refer to the certification to determine if the health care provider indicates that the employee is unable to work because of a COVID-19 quarantine, particularly if the employee has an underlying condition that might be exacerbated if the employee were to be exposed.

Technically, yes, but asking employees for a certification might pose some challenges in areas that have high rates of infection and hospitalizations. Doctors may not be available to provide certifications. Therefore, patience and flexibility will likely be key in those situations.

No, assuming the employee does not otherwise have a serious health condition. Leave taken by an employee for the purpose of avoiding exposure without an order or advice would not be protected under the FFCRA. It could be protected under the FMLA if the employee has an underlying condition that could be exacerbated by the virus. Otherwise, leave taken under advice or an order to isolate or quarantine would qualify for FFCRA leave.

Yes, if you allow it and if employees are unable to telework their normal schedule of hours due to one of the qualifying reasons for the paid sick leave. In that situation, you and the employee may agree that the employee may take paid sick leave intermittently while teleworking. Similarly, if employees are prevented from teleworking their normal schedule of hours because they need to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and the employees may agree that they can take expanded family medical leave intermittently while teleworking.

Employees may take intermittent leave in any increment, provided you and the employees agree. If, for example, you agree on a 90-minute increment, an employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

Employees in such situations may take both types of leave, but only for a total of 12 weeks of paid leave.

When you pay your employees, you are required to withhold from your employees' paychecks federal income taxes and the employees' share of Social Security and Medicare taxes. You then are required to deposit these federal taxes, along with your share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Eligible employers who pay qualifying sick or childcare leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and childcare leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and your share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and childcare leave paid, you will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less.

FMLA General FAQs

The FMLA applies to all public agencies, including local, state, and federal employers, and local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Eligible employees who work for a covered employer are entitled to take FMLA leave for a qualifying reason. FMLA eligibility requires the employee to meet the following criteria:

  • The employee must have worked at least 1,250 hours during the 12 months prior to the start of leave,
  • The employee must have worked for the employer for at least 12 months (need not be consecutive), and
  • The employee must work at a location where the employer has at least 50 or more employees within 75 miles.

Employees who meet the eligibility criteria may take up to 12 weeks of FMLA leave in a 12-month leave year period for reasons other than military caregiver leave. They may take up to 26 weeks of FMLA leave for military caregiver leave

Much will depend upon which method an employer chooses to calculate the 12-month leave year period for leave other than military caregiver leave. Employers may generally choose from the following:

  • The calendar year,
  • Another static 12-month leave year such as the employer’s fiscal year,
  • The 12 months measured forward from when an employee first takes FMLA leave, or
  • A ‘‘rolling’’ 12-month period measured backward from the date an employee uses any FMLA leave.

No. Employers, however, need not include time worked prior to a break of seven years or more.

The Family & Medical Leave Act requires only unpaid leave. Employees may elect, or the employer may require, however, to use accrued paid time off for some or all of the FMLA leave period.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider.

Inpatient care is generally an overnight stay in a health care facility.

Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.

A serious health condition involving continuing treatment includes the following:

  • A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves -
    • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
    • Treatment at least once, resulting in a regimen of continuing treatment.
  • Any period of incapacity due to pregnancy or for prenatal care.
  • Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time.
  • A period of incapacity for a permanent or long term condition in which treatment may not be effective.
  • Any period of absence to receive multiple treatments for restorative surgery or a condition that would likely result in a period of incapacity of more than three days in the absence of treatment.

  • For the birth of a son or daughter, and to bond with the newborn child;
  • For the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • To care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
  • To take medical leave when the employee is unable to work because of a serious health condition; or
  • For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
  • To care for a covered service member with a serious injury or illness.

Eligible employees may take FMLA leave to care for a spouse, child, or parent.

No. Eligible employees are entitled to up to 12 weeks of FMLA leave. When leave is taken in full weeks, you simply count the weeks. If leave is taken in less than full weeks (such as intermittent or reduced schedule), the actual workweek is the basis of leave entitlement. Therefore, if an employee who normally works 50 hours per week takes off ten hours, he would use 1/5 of a week of FMLA leave. You may convert this fraction into its hourly equivalent.

When it is medically necessary, employees may take family medical leave on a reduced leave schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may be taken intermittently only with the employer’s approval and must conclude within 12 months after the birth or placement.

The employee will likely have protections under the Americans with Disabilities Act, which could entitle him or her to more leave as a reasonable accommodation.

No, much will depend upon if the injury meets the Family Medical Leave Act definition of a serious health condition.

If the sibling stood in as a parent to the employee when the employee was a child, or the employee stood in as a parent to the sibling when the sibling was a child, the employee would be entitled to FMLA leave to care for the sibling. The sibling would have the role of a parent or a child.

No, the 1,250 hours is only hours actually worked.

No, employers may not request a certification for bonding with a healthy child.

No. Doctor’s notes are tantamount to recertifications and they need to comply with the applicable provisions, including the restrictions on when you may request one.

12 weeks, to be taken within 12 months of the birth.

Eligible employees may take FMLA leave for a serious health condition. The condition may be physical or mental. Therefore, an employee may take FMLA leave for depression or anxiety, as long as the condition otherwise meets the definition of a serious health condition. If, for example, an employee (or family member) has an overnight stay in a health care facility, it would be a serious health condition. Other parts of the definition may also apply. The FMLA Manager has an EZ Explanation on the definition of a serious health condition. Employers may request a certification supporting the need for leave, and it should contain enough information to determine if the definition is met. If medically necessary, the leave may be taken intermittently or on a reduced schedule basis.

Yes, it can. For purposes of the FMLA, a serious health condition may be physical or mental. This could include depression, anxiety, post-traumatic stress disorder, and so on.

The condition would still need to meet the definition of a serious health condition.

As with any medical condition, an employee may be entitled to take FMLA leave for a mental condition on an intermittent or reduced schedule as medically necessary. Employers may request a certification to support the need for leave for any condition, including mental ones.