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Disclaimer: None of this information is legal or tax advice and you are not entitled to rely upon it. If you have any questions, we advise you to refer to your own legal counsel. 

Families First Coronavirus Response Act

This Act requires employers to provide paid sick time to employees who are unable to work due to the effects of COVID-19. Specifically, full-time employees are entitled to 80 hours of paid sick time, which is available immediately, for use if the employee:

• is subject to a governmental quarantine or isolation order,
• has been advised by a health-care provider to self-quarantine,
• is caring for an individual who is subject to governmental or self-quarantine,
• is caring for the employee’s child because the child’s school or child-care provider is closed, or
• is experiencing a substantially similar circumstance related to COVID-19 as specified by the Department of Health and Human Services, in consultation with the Department of Labor.

Part-time employees are entitled to such paid sick time for the average number of hours the part-time employee works during an average two-week period.

The FFCRA includes and affects the following:

Emergency Paid Sick Leave Act (EPSLA)

Emergency Family Medical Leave Expansion Act (EFMLA)

Visit the U.S. Department of Labor website for further details regarding the FFCRA. 

Question and Answer

Are churches and ministries exempt to the Act? 

This Act has been mandated by the government and applies to every employer who’s under 500 employees for employees who are unable to work or telework. As employers, you do need to have the money to pay for leaves. The FFCRA does expire at the end of the year right now, and churches need to understand that they are under this law.

What are you recommending to your clients about notifying their employees? How should we be talking to our people about this?
This comes down to communication. The federal government gave a model notice and some guidance around communicating this to your staff. You can inform your employees via your usual communication channels. Employers will need to be flexible and listen to their employees’ needs throughout this process. We want to steward our ministries long-term and part of this is communicating well, often, and clearly.

What would be the penalty for a church if they failed to live up to either of these acts (the EPSLA and EFMLA)? What is the risk we’re dealing with?

There is a great risk for violating these Acts, including penalties and fines for violations. It would be deemed negligent for you as an employer to not comply with federal law. The government is trying to make it easy in terms of tax credits but churches need to take it seriously.

How does the FFCRA intersect with state unemployment insurance? How does it integrate in terms of thinking about layoffs, terminations, or shut-downs down the road?

Many pastors are worried about long term sustainability of their churches and organizations. The important part to recognize is that the EPSLA and EFMLA are for presently employed individuals. Unemployment related items are for consideration after termination. The government has done somethings to make the unemployment situation appealing, but almost all churches and ministries do not participate in an employment insurance and most don’t opt into it. If you’re having to make some terminations, consider whether your employees are able to draw on EI. This is a difficult situation in terms of accessing EI benefits and find new jobs. 

However, our churches and ministries have a lot of a flexibility making these decisions of terminations or reductions in pay. You need to think about how you’re going to stay biblical and functioning. Look at your expenses, the cost of rehiring, and consider your flexibility (reducing pay, reducing hours, etc.). You have tools and a lot of step before you need to resort to termination. 

How should we be thinking about the terms of “layoff,” “furlough,” and “termination”? 

Don’t focus on the terms too much because there are different types of layoffs. Furlough refers to a temporary reduction in pay or hours worked. Termination is straightforward. It’s more important that you are aware of the options that those terms bring. You are able to ask an employee not to work for a week and reduce their pay or hours. Those options are there, so think and pray through them, then clearly and accurately communicate the expectations to your employees. Be honest and open.

Do you have a recommendation if we were thinking about an organizational rollback on pay? Should we localize rollbacks on pay to individuals or spread it across the board?

You should err on the side of your essential business operations. You need to prioritize your team in terms of still keeping things moving. You can do a pay cut across the board but you can also pick and choose as your needs allow. This will be different for everyone. 

What about is the situation for pastors on our teams who opted out of social security?
In some states, if a pastor has been terminated from employment and they haven’t paid into a system, they should still apply for everything available funding wise and let the state figured out the benefits for them. We wouldn’t discourage anyone from applying. Some of the states are trying to be openhanded about this. Churches aren’t forbidden from applying for funds. 

What should we be paying attention to in terms of tax credits?

The big idea is that keep track of all the emergency paid sick leave you have, the employees, emergency FMLA, everything. You’re going to be able to submit those for a credit or even a refund on your payroll taxes. A notice was issued from the government about expediting this and trying to get money back in your pocket quickly. Keep track of everything.

Does this apply to churches in areas where schools were closed before April 2?

It’s not retroactive. Right now the effective dates are April 2, 2020 to December 31, 2020. 

Does EFMLA apply to churches that do not typically use FMLA because they are so small?
EFMLA applies to every company 500 employees or less, regardless of size. 

Do we want to have specific type of documentation for the reason employees can’t work? Do we have them sign off on that documentation?

To our knowledge, there is no model documentation. However, documentation outlining the employee, what their information and situation is, what money is being paid, and why the employee is taking leave should be sufficient documentation. 

Smaller ministries whose pastors are under a 1099 contract? How does this impact those relationships?

We don’t know if guidance has been issued on this point. The Department of Labor is going to provide more guidance soon. This is a process and is being built as things happen and move. So, right now we don’t know about contract workers, so pay close attention to the information as it’s released or get in touch with your own lawyer or churchlawyers.com for further legal counsel. 

How do the paid sick leave and Emergency FMLA benefits work for AB5 employees? Do the AB5 employees have to work 30 or more days?

If they’re an employee, it will apply to them. The highest minimum is for minimum wage, etc., needs to be kept in mind and erred on the side of the employee in these situations. 

Are the 80 hours of paid sick leave for full-time employees a one-time event? What if there’s another wave of the virus?

There might be another wave of legislation to deal with that when or if the time comes. Events are unfolding rapidly and legislation will follow those waves. 

Does EFMLA apply to those who cannot telework like childcare workers, preschool or school teachers? Or does it just apply those taking care of kids out of school?
They have to not be able to work or telework. By nature of their job, they can’t work. If they are a present employee, then they would be eligible, subject to the conditions of the Act.

Is a letter required by law for us to inform our employees or is there some other documentation we should be issuing?

The Department of Labor developed a public notice for posting in your place of employment or issuing to employees. Use your normal communication sense and channels with your employees.

Resources & Links

Families First Coronavirus Response Act

Families First Coronavirus Response Act: Employer Paid Leave Requirements

Track with Steven and Richard at The Church Lawyers

thechurchlawyers.com

The Church Lawyers are a full service national law firm focused on churches and religious non-profits. 

A client membership with The Church Lawyers includes the following benefits:

• 25% off hourly rate 
• Monthly credit for legal consultation
• Materials and resources including training podcasts and webinars, 
• Client portal with forms and documents 
• Diagnostic check ups

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