We previously blogged about the new paid emergency sick leave and family leave programs under the Families First Coronavirus Response Act (FFCRA). Both programs require employers to provide paid leave to employees under certain circumstances relating to the COVID-19 pandemic. However, employers are entitled to recoup all qualifying paid leave expenses from the U.S. Department of the Treasury through refundable payroll tax credits. Practically speaking, many employers are wondering what that means.

Ordinarily, employers are required to deposit with the IRS all federal income taxes withheld from employees’ pay, as well as both the employer and employee contributions to social security and medicare, on a monthly or semi-weekly basis. Employers also file quarterly payroll tax returns.

The FFCRA allows employers who pay for an employee’s emergency sick or family leave between April 1, 2020 and December 31, 2020 to keep, rather than deposit, a portion of the payroll taxes due for all of its employees that is equal to the allowable cost of that leave. If the total amount of payroll taxes due for all of an employer’s employees is less than the allowable cost of leave, the employer may immediately file an accelerated request for payment of the deficiency with the IRS. In a press release, the IRS has indicated that it will soon issue forms on which such a request can be made.

The IRS’ website provides the following example to explain how these refundable tax credits will work:

“If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date. If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.”

Although employers are entitled to reimbursement for the costs of maintaining an employee’s health insurance during the period of emergency sick or family leave, it is unclear whether the employer may be reimbursed for those costs in the same manner described above.

Self-employed individuals are also entitled to be reimbursed for qualified emergency family or sick leave payments. These individuals may reduce their estimated tax payments to recoup qualified leave payments, and report the payments on their tax returns.

What kind of paperwork will need to be provided to substantiate an employer’s payment of qualified leave expenses? According to the U.S. Department of Labor’s (USDOL) website, the IRS will soon issue guidance on this point, but employers should assume that they will need sufficient documentation to substantiate the employee’s entitlement to leave. As it relates to paid emergency family leave, USDOL states that “you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional [Family and Medical Leave Act of 1993] leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.”

We will continue to provide updates as they become available.