The Families First Coronavirus Response Act (“FFCRA”) is a federal law that provides for emergency paid leave in certain circumstances from April 1, 2020 through December 31, 2020.  Some clients have inquired as to whether the FFCRA’s tax credit provisions apply to governmental employers, including public schools.  While these paid leave credits do not currently apply to governmental employers, the FFCRA does provide governmental employers, including school districts, with limited relief by not requiring them to pay the 6.2% employer share of Social Security taxes on paid leave required by the FFCRA.

Brief Overview of the FFCRA

The FFCRA requires employers, including school districts, to provide up to eighty hours of emergency paid sick for eligible full-time employees (or pro-rata for part-time employees) for coronavirus-related reasons.  Employers must provide emergency paid sick leave if an employee is unable to work, or telework, for the following reasons:

1. The employee is subject to federal, state or local quarantine or isolation order;
2. The employee has been advised by a healthcare provider to self-quarantine;
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. The employee is caring for an individual quarantined as described in (1) or (2);
5. The employee is caring for his or her child whose school or place of care has been closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

There are caps on the daily and total amounts of compensation applicable to an employee, depending on the reason for the leave.  If leave is taken pursuant to Reasons 1-3 (self-care), it must be paid at the higher of an employee’s regular rate of pay or minimum wage at 100%, up to caps of $511/day and $5,110 in the aggregate.  If leave applies under Reasons 4-6 (care for another), the emergency sick leave must be paid at two-thirds (2/3) the employee’s regular rate of pay, up to payment caps of $200/day and $2,000 in the aggregate.

The FFCRA also amends portions of the Family Medical Leave Act (FMLA).  While the traditional categories of FMLA remain unpaid, the law adds a new covered reason: to care for a minor child due to closure of the child’s school or place of care (or unavailability of child care provider) due to COVID-19.  The first ten days of leave taken for this reason are unpaid; the next ten weeks are paid out at two-thirds (2/3) of the eligible employee’s regular rate of pay.  There is a payment cap of $200 per day and $10,000 in the aggregate for emergency family and medical leave.

More information regarding emergency paid sick leave and emergency family medical leave is available on our Coronavirus Resource page, accessible here.

Paid Leave Credits

Under the FFCRA, private sector employers are generally afforded a tax credit equal to the value of the paid leave required under the new law.  However, these paid leave credits do not currently apply to certain governmental employers, including school districts.

Special FFCRA Rule for Certain FICA Taxes

As governmental employees responsible for payroll matters likely know, employers have numerous payroll tax withholding and payment obligations.  In general, there are four categories of FICA taxes, which can be described as a 6.2% Social Security portion paid by the employer, 6.2% Social Security portion paid by the employee, 1.45% Medicare portion paid by the employer, and 1.45% Medicare portion paid by the employee.  Although governmental employers do not qualify for the tax credits described above, any leave paid pursuant to the FFCRA is excluded from the definition of “wages” for the very limited purpose of complying with Section 3111(a) of the Internal Revenue Code, which lays out the requirement that employers pay their share of the Social Security portion of the FICA tax.

Thus, the FFCRA contains limited relief for governmental employers in regard to FICA taxes, but it only affects the Social Security portion paid by the employer.  In sum, when issuing payments under the FFCRA, if the employer and employee are otherwise subject to Social Security and Medicare taxes, governmental employers:

• Do not need to pay the employer portion of the Social Security tax
• Must withhold the employee share of the Social Security tax
• Must pay the employer share of the Medicare tax
• Must withhold the employee share of the Medicare tax

In the school context, certain Social Security and Medicare taxes do not apply to employees such as teachers, and therefore these distinctions may only become important in limited situations.  However, it is important for all governmental employers and school districts to understand the very limited circumstance in which they are exempt from paying the employer portion of the Social Security tax when making payments for FFCRA leave.

Please continue to monitor ctschoollaw.com for updates concerning COVID-19.  If you have specific questions about the FFCRA and tax implications, please contact Raymond J. Casella at rcasella@goodwin.com or Dori Pagé Antonetti at dantonetti@goodwin.com.