To All Congregational Leaders:
I hope everyone is staying well and doing their part complying with the Governor’s stay home order.
On March 18th, Families First Coronavirus Response Act was put into law. The law requires that all employers with 500 or less employees offer sick leave benefits to their current employees. It also requires that the attached notice, Employee Rights, be posted in a conspicuous place. Since most of our employees are working from home, then this can be delivered to them via electronic or regular US mail by April 1st.
The notice provides the levels of sick leave that are to be provided to your employees. Keep in mind being in California, we are already required to have mandatory sick leave for our employees and your congregation may have its own sick time policy. The Federal sick time requirement is in addition to and not instead of any state mandated or internal employment policy.
Does this apply to employees who are working from home? The answer is no. Employees working from home should be paid their regular rates of pay.
Does this apply to clergy? It’s not clear. All of your pastors are working at the fullest capacity possible outside of in-person worship. It is recommended that you keep paying them on regular salary as working from home employees.
Part of this act provides for reimbursement through your payroll taxes. If the amount you pay in payroll taxes is less than the amount you pay in sick leave, then you can receive an expedited refund from the IRS. Currently, the mechanism for this is not available yet, so keep watch for further developments.
I’ve attached two other resources for you to read. One is from the UCC (United Church of Christ). The ELCA forwarded this to all synod treasurers as a resource to aid in understanding the act. Also attached is a PDF from the IRS regarding the leave and the reimbursement of the sick leave.
If you reach out to members of your congregation, it’s a good time to remind them to continuing supporting the congregation through their donations as they are able to. The congregation still has bills to pay even if the congregation isn’t meeting every Sunday,
As more information becomes available, we will try and get it to you as quickly as possible. If you have further questions, you should contact an accounting, tax, and/or legal professional. If you don’t have access to any of these individuals, please email your questions to the Synod and we will do our best to get your questions answered.
Be well and stay safe.
Wishing you all God’s peace during this time,
Michael F. Metzger
Additional Information (Updated March 31, 2020)
First, it should be noted that the FFCRA is temporary and expires on December 31, 2020.
Second, there is no current exception for religious entities at this time under the FFCRA. And, while religious and non-profit organizations fall within the purview of the existing FMLA, it remains unclear as to whether a ministerial exception would apply at this time to the FFCRA. Additional DOL regulation and guidance is forthcoming.
However, the DOL clarified just yesterday that there is a small business exception to the FFCRA, which includes non-profit and religious institutions. Specifically, an employer with fewer than 50 employees (a “small business”) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.
A small business may claim this exemption if an authorized officer of the business has determined that:
The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this small business exemption, the employer will need to document why the business with fewer than 50 employees meets the criteria set forth above. The DOL will address the procedure in further detail in forthcoming regulations. At this time, however, employers should not send any materials to the DOL when seeking a small business exemption for paid sick leave and expanded family and medical leave.
For now, we recommend providing the FFCRA notice by close of business on Tuesday, March 31st, with the caveat that the employer has yet to find out whether it is exempted from the new law and in accordance with the U.S. Department of Labor regulations and guidance. This can be done via electronic means, such as email.
As you know, this area of the law is continually evolving and we are monitoring it daily.