I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614AE.21DD8900]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image003.jpg@01D614AE.21DD8900]http://www.facebook.com/IMLA-259977855541/  [cid:image004.jpg@01D614AE.21DD8900] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image005.png@01D614AE.21DD8900] http://twitter.com/imlalegal  [cid:image006.jpg@01D614AE.21DD8900] http://soundcloud.com/internationalmunicipallawyersassociation
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D (202) 742-1016

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Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
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Recognizing you are not pretending to be competent in this area, I'm not sure I'm competent understanding the posed question.  :)

As I understand it and as we are operating-we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image007.png@01D614B3.86F60560]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850

[cid:image010.jpg@01D614B3.86F60560]http://www.facebook.com/IMLA-259977855541/  [cid:image012.jpg@01D614B3.86F60560] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image014.jpg@01D614B3.86F60560] http://twitter.com/imlalegal  [cid:image016.jpg@01D614B3.86F60560] http://soundcloud.com/internationalmunicipallawyersassociation

P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/

Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
IMLA's 2020 Virtual Mid-Year Seminar, April 20-24!
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Laura, the devil will be in the details, but I think the issue I was focusing on was FMLA and emergency paid leave under the Act.  Should employees be entitled to those leave payments, then the employer does not need to pay FICA taxes (employer share) on those leave payments up to wages of $200 per day or $10K aggregate for the employee.  The employee must still pay, so deductions from the employee's check are required.  To the extent you supplement pay, I frankly haven't looked at that.  Chuck

From: Burton, Laura burton_laura@cityofgastonia.com
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson cthompson@imla.org; disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I'm not sure I'm competent understanding the posed question.  :)

As I understand it and as we are operating-we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614B5.CCC02970]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image003.jpg@01D614B5.CCC02970]http://www.facebook.com/IMLA-259977855541/  [cid:image004.jpg@01D614B5.CCC02970] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image005.jpg@01D614B5.CCC02970] http://twitter.com/imlalegal  [cid:image006.jpg@01D614B5.CCC02970] http://soundcloud.com/internationalmunicipallawyersassociation
P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/
Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
IMLA's 2020 Virtual Mid-Year Seminar, April 20-24!
IMLA's 85th Annual Conferencehttp://www.imla.org/events/conferences, September 23-27 in Riverside County, CA!

Let me add - I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: "Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act"[emphasis supplied.]  If not required, there doesn't seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I'm reading. Chuck

From: Burton, Laura burton_laura@cityofgastonia.com
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson cthompson@imla.org; disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I'm not sure I'm competent understanding the posed question.  :)

As I understand it and as we are operating-we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614B6.8C634E10]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image003.jpg@01D614B6.8C634E10]http://www.facebook.com/IMLA-259977855541/  [cid:image004.jpg@01D614B6.8C634E10] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image005.jpg@01D614B6.8C634E10] http://twitter.com/imlalegal  [cid:image006.jpg@01D614B6.8C634E10] http://soundcloud.com/internationalmunicipallawyersassociation
P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/
Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
IMLA's 2020 Virtual Mid-Year Seminar, April 20-24!
IMLA's 85th Annual Conferencehttp://www.imla.org/events/conferences, September 23-27 in Riverside County, CA!

Yes, as I understand it, deductions from the employee's check are still required as you stated immediately  below.

And, yes, I would agree as you said further below that "an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages."

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:44 PM
To: Burton, Laura; disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
Laura, the devil will be in the details, but I think the issue I was focusing on was FMLA and emergency paid leave under the Act.  Should employees be entitled to those leave payments, then the employer does not need to pay FICA taxes (employer share) on those leave payments up to wages of $200 per day or $10K aggregate for the employee.  The employee must still pay, so deductions from the employee's check are required.  To the extent you supplement pay, I frankly haven't looked at that.  Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I'm not sure I'm competent understanding the posed question.  :)

As I understand it and as we are operating-we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614B6.FC131240]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850

[cid:image008.jpg@01D614B6.FC131240]http://www.facebook.com/IMLA-259977855541/  [cid:image009.jpg@01D614B6.FC131240] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image010.jpg@01D614B6.FC131240] http://twitter.com/imlalegal  [cid:image011.jpg@01D614B6.FC131240] http://soundcloud.com/internationalmunicipallawyersassociation

P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/

Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
IMLA's 2020 Virtual Mid-Year Seminar, April 20-24!
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Agree with that as well.

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:49 PM
To: Burton, Laura; disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
Let me add - I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: "Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act"[emphasis supplied.]  If not required, there doesn't seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I'm reading. Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I'm not sure I'm competent understanding the posed question.  :)

As I understand it and as we are operating-we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations' advice to their members something that I think may be a little off (or I could be a little off) and thought I'd send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here's the rub - the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer's requirement to pay FICA on those wages.

I'm not pretending to be competent in this area, but this is how I'm reading it and I've seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don't believe that is correct.  If anyone disagrees let's try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614B7.F39A8890]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850

[cid:image008.jpg@01D614B7.F39A8890]http://www.facebook.com/IMLA-259977855541/  [cid:image009.jpg@01D614B7.F39A8890] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image010.jpg@01D614B7.F39A8890] http://twitter.com/imlalegal  [cid:image011.jpg@01D614B7.F39A8890] http://soundcloud.com/internationalmunicipallawyersassociation

P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/

Plan Ahead! JOIN OUR VIRTUALSEMINAR - SIGN UP NOW
IMLA's 2020 Virtual Mid-Year Seminar, April 20-24!
IMLA's 85th Annual Conferencehttp://www.imla.org/events/conferences, September 23-27 in Riverside County, CA!

I’m not sure this factors into the analysis, but we are interpreting the published regulations as requiring the employer to allow an employee to use applicable accrued leave to fill the 1/3 pay gap for the 10 weeks of expanded FMLA, if the employee elects to do so. With that in mind, do you think that FICA would be exempted for that 1/3 gap, if an employee elects to use applicable accrued leave to get a full day’s pay?
Here’s an excerpt from the explanatory text and the regulations:

In subsection (d), we made clear that despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer's policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave, and the employer must pay the employee a full day's pay for that day.

826.24(d). Notwithstanding paragraph (a) of this section, if an Eligible Employee elects or is required to use leave available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer's policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave, the Employer must pay the Eligible Employee a full day's pay for that day. However, the Employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits for Expanded Family and Medical Leave paid under the EFMLEA.

Thanks,

Jennifer

[cid:image001.png@01D2CF14.4EBD9AB0]http://www.dallascitynews.net/

Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O:  214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Burton, Laura
Sent: Friday, April 17, 2020 11:59 AM
To: 'Chuck Thompson' cthompson@imla.org; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] FFCRA

External Email!
Agree with that as well.

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:49 PM
To: Burton, Laura; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
Let me add – I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: “Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act”[emphasis supplied.]  If not required, there doesn’t seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I’m reading. Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I’m not sure I’m competent understanding the posed question.  ☺

As I understand it and as we are operating—we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations’ advice to their members something that I think may be a little off (or I could be a little off) and thought I’d send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here’s the rub – the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer’s requirement to pay FICA on those wages.

I’m not pretending to be competent in this area, but this is how I’m reading it and I’ve seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don’t believe that is correct.  If anyone disagrees let’s try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image001.png@01D614BD.9BA69B50]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image003.jpg@01D614BD.9BA69B50]http://www.facebook.com/IMLA-259977855541/  [cid:image004.jpg@01D614BD.9BA69B50] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image005.jpg@01D614BD.9BA69B50] http://twitter.com/imlalegal  [cid:image006.jpg@01D614BD.9BA69B50] http://soundcloud.com/internationalmunicipallawyersassociation
P (202) 466-5424 ext. 7110      M (240) 876-6790
D (202) 742-1016

W www.imla.orghttp://www.imla.org/
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Jennifer, That seems to offer support for incorporating that leave into the required leave.  Maybe we can direction from Treasury as to whether this extends to the FICA exemption.  Because the credits are different from the FICA exemption, I’m uncertain if the answer to one can be support for the answer to the other.  Chuck

From: Huggard, Jennifer jennifer.huggard@dallascityhall.com
Sent: Friday, April 17, 2020 2:44 PM
To: Burton, Laura burton_laura@cityofgastonia.com; Chuck Thompson cthompson@imla.org; disasterrelief@lists.imla.org
Subject: RE: FFCRA

I’m not sure this factors into the analysis, but we are interpreting the published regulations as requiring the employer to allow an employee to use applicable accrued leave to fill the 1/3 pay gap for the 10 weeks of expanded FMLA, if the employee elects to do so. With that in mind, do you think that FICA would be exempted for that 1/3 gap, if an employee elects to use applicable accrued leave to get a full day’s pay?
Here’s an excerpt from the explanatory text and the regulations:

In subsection (d), we made clear that despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer's policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave, and the employer must pay the employee a full day's pay for that day.

826.24(d). Notwithstanding paragraph (a) of this section, if an Eligible Employee elects or is required to use leave available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer's policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave, the Employer must pay the Eligible Employee a full day's pay for that day. However, the Employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits for Expanded Family and Medical Leave paid under the EFMLEA.

Thanks,

Jennifer

[cid:image007.png@01D614C7.419B6A00]http://www.dallascitynews.net/

Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O:  214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Burton, Laura
Sent: Friday, April 17, 2020 11:59 AM
To: 'Chuck Thompson' <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] FFCRA

External Email!
Agree with that as well.

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:49 PM
To: Burton, Laura; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
Let me add – I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: “Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act”[emphasis supplied.]  If not required, there doesn’t seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I’m reading. Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I’m not sure I’m competent understanding the posed question.  ☺

As I understand it and as we are operating—we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?
From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
I saw in the context of some other organizations’ advice to their members something that I think may be a little off (or I could be a little off) and thought I’d send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here’s the rub – the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer’s requirement to pay FICA on those wages.

I’m not pretending to be competent in this area, but this is how I’m reading it and I’ve seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don’t believe that is correct.  If anyone disagrees let’s try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image008.png@01D614C7.419B6A00]

Charles W. Thompson, Jr.
Executive Director/General Counsel
International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850
[cid:image010.jpg@01D614C7.419B6A00]http://www.facebook.com/IMLA-259977855541/  [cid:image011.jpg@01D614C7.419B6A00] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image012.jpg@01D614C7.419B6A00] http://twitter.com/imlalegal  [cid:image013.jpg@01D614C7.419B6A00] http://soundcloud.com/internationalmunicipallawyersassociation
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IMLA’s 2020 Virtual Mid-Year Seminar, April 20-24!
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CAUTION: This email originated from outside of the organization. Please, do not click links or open attachments unless you recognize the sender and know the content is safe.

My understanding is that they're only allowing social security exemption from withholding for the 2/3, not for any additional amounts. The DOL guidance on this has changed. Others from my state are seeking greater clarification on this issue and I will share that with this group if we get it.

DOL guidance question and answers #32:

If I am an employer, may I use the paid sick leave mandated under the EPSLA to satisfy paid leave entitlements that an employee may have under my paid leave policy?

No, unless your employee agrees. Paid sick leave under the EPSLA is in addition to your employee’s (including Federal Employees’) other leave entitlements. You may not require your employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave. You also may not require your employee to use such existing leave concurrently with the paid sick leave under the EPSLA. But if you and your employee agree, your employee may use preexisting leave entitlements to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA. You are free to amend your own policies to the extent consistent with applicable law.

I think there's similar language re: E-FMLA later in the Q&As.

Thanks -

Heidi

(sent from OWA)
HEIDI K. BROWN | Chief Dep. City Attorney (She/Her)
PORTLAND OFFICE OF THE CITY ATTORNEY
1221 SW Fourth Avenue, Room 430
Portland, OR 97204
Voice: 503-823-3038 | Fax: 503-823-3089
heidi.brown@portlandoregon.govmailto:heidi.brown@portlandoregon.gov

Equal Access Notice: The City of Portland operates without regard to race, color, national origin, religion, sex, sexual orientation, gender identity, marital status, age or disability according to all applicable non‐discrimination laws, Title VI of the Civil Rights Act, and Title II of the ADAhttps://www.portlandoregon.gov/oehr/article/513751. To help ensure equal access to City services, the City will provide translation and interpretation and will reasonably modify policies or procedures and provide auxiliary aids or services to persons with disabilities. For such requests please click herehttps://www.portlandoregon.gov/oehr/article/454403 or call (503) 823-2559, TTY 503-823-6868 or Oregon Relay Service: 711.
Portland City Attorney Confidentiality Notice: This message may contain confidential or legally privileged information belonging to the sender. If you have received this message by mistake, please immediately notify the sender, delete the original message, and destroy all copies.

From: Disasterrelief disasterrelief-bounces@lists.imla.org on behalf of Chuck Thompson cthompson@imla.org
Sent: Friday, April 17, 2020 11:56 AM
To: Huggard, Jennifer jennifer.huggard@dallascityhall.com; Burton, Laura burton_laura@cityofgastonia.com; disasterrelief@lists.imla.org disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] FFCRA

Jennifer, That seems to offer support for incorporating that leave into the required leave.  Maybe we can direction from Treasury as to whether this extends to the FICA exemption.  Because the credits are different from the FICA exemption, I’m uncertain if the answer to one can be support for the answer to the other.  Chuck

From: Huggard, Jennifer jennifer.huggard@dallascityhall.com
Sent: Friday, April 17, 2020 2:44 PM
To: Burton, Laura burton_laura@cityofgastonia.com; Chuck Thompson cthompson@imla.org; disasterrelief@lists.imla.org
Subject: RE: FFCRA

I’m not sure this factors into the analysis, but we are interpreting the published regulations as requiring the employer to allow an employee to use applicable accrued leave to fill the 1/3 pay gap for the 10 weeks of expanded FMLA, if the employee elects to do so. With that in mind, do you think that FICA would be exempted for that 1/3 gap, if an employee elects to use applicable accrued leave to get a full day’s pay?

Here’s an excerpt from the explanatory text and the regulations:

In subsection (d), we made clear that despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer's policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave, and the employer must pay the employee a full day's pay for that day.

826.24(d). Notwithstanding paragraph (a) of this section, if an Eligible Employee elects or is required to use leave available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer's policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave, the Employer must pay the Eligible Employee a full day's pay for that day. However, the Employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits for Expanded Family and Medical Leave paid under the EFMLEA.

Thanks,

Jennifer

[cid:image007.png@01D614C7.419B6A00]http://www.dallascitynews.net/

Jennifer Carter Huggard

Executive Assistant City Attorney

Section Head

Employment Law Section

City of Dallas
Dallas City Attorney’s Office

1500 Marilla St., 7DN

Dallas, TX 75201
O:  214-670-5622

F: 214-670-0622

jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Burton, Laura
Sent: Friday, April 17, 2020 11:59 AM
To: 'Chuck Thompson' <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] FFCRA

External Email!

Agree with that as well.

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:49 PM
To: Burton, Laura; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.

Let me add – I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: “Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act”[emphasis supplied.]  If not required, there doesn’t seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I’m reading. Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I’m not sure I’m competent understanding the posed question.  ☺

As I understand it and as we are operating—we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?

From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.

I saw in the context of some other organizations’ advice to their members something that I think may be a little off (or I could be a little off) and thought I’d send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here’s the rub – the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer’s requirement to pay FICA on those wages.

I’m not pretending to be competent in this area, but this is how I’m reading it and I’ve seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don’t believe that is correct.  If anyone disagrees let’s try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image008.png@01D614C7.419B6A00]

Charles W. Thompson, Jr.
Executive Director/General Counsel

International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850

[cid:image010.jpg@01D614C7.419B6A00]http://www.facebook.com/IMLA-259977855541/  [cid:image011.jpg@01D614C7.419B6A00] http://www.linkedin.com/company/international-municipal-lawyers-association-inc./  [cid:image012.jpg@01D614C7.419B6A00] http://twitter.com/imlalegal  [cid:image013.jpg@01D614C7.419B6A00] http://soundcloud.com/internationalmunicipallawyersassociation

P (202) 466-5424 ext. 7110      M (240) 876-6790

D (202) 742-1016

W www.imla.orghttp://www.imla.org/

Plan Ahead! JOIN OUR VIRTUALSEMINAR – SIGN UP NOW

IMLA’s 2020 Virtual Mid-Year Seminar, April 20-24!

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CAUTION: This email originated from outside of the organization. Please, do not click links or open attachments unless you recognize the sender and know the content is safe.

With regard to concurrently running other leave,  it is slightly different for EFMLA.  The employee can elect to run paid leave concurrently with EFMLA and the employer has to allow it.  The employer can also force this upon an employee to do.

826.160(c)  reads that an employee can elect to use provided or accrued leave available--and, the employer would have to allow that.  826.24 (d) suggests the same, that the employee can elect to use leave available to him or her to run concurrently.  So, the employer would have to allow that.

This may have been unclear before because there was an existing section, 826.70(f), that was repealed April 10.  I talked to the same professor that Chuck has posted the blogs for and she agreed.

I still think the tax analysis would be the same for EFMLA. Only get the exemption for the 2/3 you have to pay under EFMLA.

Laura

From: Brown, Heidi [mailto:Heidi.Brown@portlandoregon.gov]
Sent: Friday, April 17, 2020 10:38 PM
To: Chuck Thompson; Huggard, Jennifer; Burton, Laura; disasterrelief@lists.imla.org
Subject: Re: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.
My understanding is that they're only allowing social security exemption from withholding for the 2/3, not for any additional amounts. The DOL guidance on this has changed. Others from my state are seeking greater clarification on this issue and I will share that with this group if we get it.

DOL guidance question and answers #32:

If I am an employer, may I use the paid sick leave mandated under the EPSLA to satisfy paid leave entitlements that an employee may have under my paid leave policy?

No, unless your employee agrees. Paid sick leave under the EPSLA is in addition to your employee’s (including Federal Employees’) other leave entitlements. You may not require your employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave. You also may not require your employee to use such existing leave concurrently with the paid sick leave under the EPSLA. But if you and your employee agree, your employee may use preexisting leave entitlements to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA. You are free to amend your own policies to the extent consistent with applicable law.
I think there's similar language re: E-FMLA later in the Q&As.

Thanks -

Heidi

(sent from OWA)
HEIDI K. BROWN | Chief Dep. City Attorney (She/Her)
PORTLAND OFFICE OF THE CITY ATTORNEY
1221 SW Fourth Avenue, Room 430
Portland, OR 97204
Voice: 503-823-3038 | Fax: 503-823-3089
heidi.brown@portlandoregon.govmailto:heidi.brown@portlandoregon.gov

Equal Access Notice: The City of Portland operates without regard to race, color, national origin, religion, sex, sexual orientation, gender identity, marital status, age or disability according to all applicable non‐discrimination laws, Title VI of the Civil Rights Act, and Title II of the ADAhttps://www.portlandoregon.gov/oehr/article/513751. To help ensure equal access to City services, the City will provide translation and interpretation and will reasonably modify policies or procedures and provide auxiliary aids or services to persons with disabilities. For such requests please click herehttps://www.portlandoregon.gov/oehr/article/454403 or call (503) 823-2559, TTY 503-823-6868 or Oregon Relay Service: 711.
Portland City Attorney Confidentiality Notice: This message may contain confidential or legally privileged information belonging to the sender. If you have received this message by mistake, please immediately notify the sender, delete the original message, and destroy all copies.

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> on behalf of Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>
Sent: Friday, April 17, 2020 11:56 AM
To: Huggard, Jennifer <jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com>; Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org <disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org>
Subject: Re: [Disasterrelief] FFCRA

Jennifer, That seems to offer support for incorporating that leave into the required leave.  Maybe we can direction from Treasury as to whether this extends to the FICA exemption.  Because the credits are different from the FICA exemption, I’m uncertain if the answer to one can be support for the answer to the other.  Chuck

From: Huggard, Jennifer <jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com>
Sent: Friday, April 17, 2020 2:44 PM
To: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>; Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

I’m not sure this factors into the analysis, but we are interpreting the published regulations as requiring the employer to allow an employee to use applicable accrued leave to fill the 1/3 pay gap for the 10 weeks of expanded FMLA, if the employee elects to do so. With that in mind, do you think that FICA would be exempted for that 1/3 gap, if an employee elects to use applicable accrued leave to get a full day’s pay?

Here’s an excerpt from the explanatory text and the regulations:

In subsection (d), we made clear that despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer's policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave, and the employer must pay the employee a full day's pay for that day.

826.24(d). Notwithstanding paragraph (a) of this section, if an Eligible Employee elects or is required to use leave available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer's policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave, the Employer must pay the Eligible Employee a full day's pay for that day. However, the Employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits for Expanded Family and Medical Leave paid under the EFMLEA.

Thanks,

Jennifer

[cid:image001.png@01D6170F.9942ABC0]http://www.dallascitynews.net/

Jennifer Carter Huggard

Executive Assistant City Attorney

Section Head

Employment Law Section

City of Dallas
Dallas City Attorney’s Office

1500 Marilla St., 7DN

Dallas, TX 75201
O:  214-670-5622

F: 214-670-0622

jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Burton, Laura
Sent: Friday, April 17, 2020 11:59 AM
To: 'Chuck Thompson' <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] FFCRA

External Email!

Agree with that as well.

From: Chuck Thompson [mailto:cthompson@imla.org]
Sent: Friday, April 17, 2020 12:49 PM
To: Burton, Laura; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.

Let me add – I think the key is the language in Section 7005a wherein it discusses the FICA exemption as applying to: “Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act”[emphasis supplied.]  If not required, there doesn’t seem to be any provision for non payment of FICA in the Act.  But I could be missing it.

So, if an employer is acting to provide benefits outside the parameters of the requirements of the Act, the exemption provision seemingly does not apply.  At least what I’m reading. Chuck

From: Burton, Laura <burton_laura@cityofgastonia.commailto:burton_laura@cityofgastonia.com>
Sent: Friday, April 17, 2020 12:37 PM
To: Chuck Thompson <cthompson@imla.orgmailto:cthompson@imla.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: RE: FFCRA

Recognizing you are not pretending to be competent in this area, I’m not sure I’m competent understanding the posed question.  ☺

As I understand it and as we are operating—we are not allowing employees to supplement the extra 1/3 while exercising benefits under  Emergency Sick 4 or 5 or Emergency FMLA.  If an employer was allowing that, I would understand that the FICA tax exemption would not apply to the employer on that supplement.

Is that what you are asking about?

From: Disasterrelief [mailto:disasterrelief-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 11:49 AM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] FFCRA

CAUTION:  This email originated from outside of the organization.  Do not click links or open attachments unless you recognize the sender and know the content is safe.

I saw in the context of some other organizations’ advice to their members something that I think may be a little off (or I could be a little off) and thought I’d send this out to gain clarification among us as we advise clients where clients may be getting conflicting advice.

The FFCRA as we know requires paid leave and defines the parameters of those requirements. It also exempts FICA payments on that leave.  Here’s the rub – the Act provides that the FICA payments are only exempt on the required leave. In addition to the Act defining who is covered (both employer and employee) the Act defines the triggering basis for the leave and also limits the amount of pay covered to $200 per day per employee and $10K per employee total.  So, as you calculate the exempt FICA you must look to whether you and the employee are both covered, whether the employee has a triggering event and the amount the employee is paid as you calculate the FICA exemption.  So, an employee earning above a rough calculation of $52000 in applicable FICA wages will have both exempt and non-exempt pay in terms of the employer’s requirement to pay FICA on those wages.

I’m not pretending to be competent in this area, but this is how I’m reading it and I’ve seen messages out there that say the exemption applies to all leave paid under FFCRA.  I don’t believe that is correct.  If anyone disagrees let’s try to get this resolved as quickly as possible.  If you do agree, please be aware that your client may be getting different advice and you might want to be proactive here.  Chuck

[cid:image002.png@01D6170F.9942ABC0]

Charles W. Thompson, Jr.
Executive Director/General Counsel

International Municipal Lawyers Association, Inc.

A 51 Monroe St., Suite 404, Rockville, MD 20850

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P (202) 466-5424 ext. 7110      M (240) 876-6790

D (202) 742-1016

W www.imla.orghttp://www.imla.org/

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