Housing Providers and the Families First Coronavirus Response Act

Legislation | April 02, 2020 | by Juliana Bilowich

Across the country, housing providers are dealing with the health and economic fallout of the pandemic. As Congress takes action to provide relief from COVID-19, housing communities – owners, staff, and residents – are affected by new sick leave and family medical leave provisions for workers.

In this article, we provide a basic overview of new sick leave and family medical leave requirements that affect housing providers and their employees. LeadingAge’s more comprehensive overview of the new paid and family medical leave requirements is available here, and the Department of Labor’s Q&A on the Families First Coronavirus Response Act (FFCRA) is available here.

What is the Families First Coronavirus Response Act (FFRCA) and how does it apply to housing providers?

This bill was signed into law on March 18, 2020. The FFCRA created (1) a new requirement for paid sick leave for workers affected by the COVID-19 crisis and (2) a new requirement for paid leave under the Family Medical and Leave Act. The new provisions go into effect April 1 and last until December 31, 2020.

Are housing providers required to comply with the new paid leave requirements?

The short answer is yes. Private employers with fewer than 500 employees are required to provide the new paid FMLA leave. This includes private employers utilizing federal funds, like HUD-assisted affordable housing properties.

However, an employer with fewer than 50 employees may be exempted if it would jeopardize the viability of the business. The regulations issued by the Department on April 1 state that the small business should document the reasons for the exemption; the business does not have to file anything with the department, just keep its own records.

What are the new leave provisions?

  • For paid sick leave, employees are entitled to 80 hours of sick leave, paid at their regular rate, if they are unable to work because of COVID-19. Reasons include a quarantine order, if they have been diagnosed or are experiencing symptoms and are awaiting a diagnosis, have been advised to self-isolate due to exposure, or if they are caring for someone who is sick or quarantined. A complete list is available in LeadingAge’s general FFRCA Q&A here.
  • For Family Medical Leave Act (FMLA), employees can take paid FMLA leave if unable to work or telework because they are caring for a child because of school closures as a result of COVID-19. This new leave is available for a total of 12 weeks with the first 10 days unpaid. The employee is entitled to 2/3d their regular pay rate, with a daily max of $200.

How will my organization pay for this?

The federal government will cover the cost of paid FMLA leave through the employer’s payroll tax. As we wait for more guidance, it appears that the employer will not have to pay its portion of payroll taxes, and if this isn’t enough to cover the entire cost, the federal government will refund the rest as an overpayment. While originally it looked like the employer would have to wait for reimbursement, it looks now like the employer can simply not pay in its quarterly obligation to FICA.

Are my property staff exempt from these provisions?

In a Q&A released on the 29th, the Department of Labor (DOL) has said that employees who may be exempted at a nursing home, retirement facility, home health care provider or similar institution, along with other healthcare businesses. However, stand-alone independent senior living, including HUD subsidized housing, does not appear to be included in the exemption list, including communities with service coordinators.

What are the next steps housing providers need to take?

The leave requirements went into effect on April 1st, 2020, but the agency won’t completely enforce the leave provisions until April 18th. Employers must post a notice to their employees setting out the requirements of the new law even if the employer is able to be exempted.

We will provide updates as the Department of the Treasury and the Department of Labor issue further guidance that clarifies or affects housing providers. Their current Q&A on the FFCRA is available here. Because LeadingAge cannot offer legal advice on how to implement these new laws, we strongly recommend that you consult with your employment counsel to make sure you are following the law appropriately.