DOL updates guidance for employers on implementation of FFCRA

The U.S. Department of Labor just recently updated its Q&A on the Families First Coronavirus Reponse Act, providing additional, much-needed guidance to employers. The interpretation and implementation to the FFCRA is changing quickly. The DOL anticipates publishing proposed regulations for the FFCRA in early April. Employers should be regularly checking the DOL website and looking for other updates as the DOL adds more and much needed clarity. The key updates and clarifications to the Q&A include:

  • Employer wishing to elect the small business exemption for child care-related paid sick leave and expanded FMLA should document why their business with fewer than 50 employees meets criteria set forth by the DOL, which will be addressed in forthcoming regulations. The DOL has emphasized that no materials should be sent to the DOL when seeking the exemption.
  • Employees can only take up to two weeks of paid sick leave for a qualifying reason — even if an employee is eligible for leave for multiple qualifying reasons.
  • Employers are responsible for obtaining and maintaining certain records when an employee takes paid sick leave or expanded FMLA. Employers must require employees to provide them with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the healthcare provider who has advised the worker to self-quarantine. For example, this documentation may include a copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a healthcare provider advising the employee to self-quarantine due to concerns related to COVID-19.

    If the employer intends to claim a tax credit under the FFCRA for payment of the sick leave wages, this documentation should be retained in its records.

    If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, employers must require appropriate documentation in support of such leave, just as they would for conventional FMLA 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.

    This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. Again, if you intend to claim a tax credit for expanded FMLA, employers should retain this documentation in their records.
  • All existing certification requirements under the FMLA remain in effect if an employee is taking leave for one of the existing qualifying reasons under the regular FMLA. For example, if an employee is taking leave beyond the two weeks of emergency paid sick leave because a medical condition for COVID-19-related reasons rises to the level of a serious health condition, the employee must continue to provide medical certifications under the FMLA required by the employer.
  • An employee is capable of telework under the FFCRA when an employer permits or allows the employee to perform work while at home or at a location other than the employee’s normal workplace. If an employee and employer agree that the employee will work his normal number of hours, but outside of his normally scheduled hours (for instance, early in the morning or late at night), then the employee is able to work and leave is not necessary unless a COVID-19-qualifying reason prevents him from working that schedule. As another example, to the extent an employee is able to telework while caring for his child, paid sick leave and expanded FMLA would not be available.
  • As for whether leave can be taken intermittently, the answer depends on whether the leave is paid sick leave or emergency FMLA. Employees may take expanded FMLA intermittently, but only with the employer’s permission and when the employer and employee agree upon such an intermittent schedule. For example, an employer and employee could agree to telework from 1:00 to 2:30pm, with leave from 2:30 to 4:00pm, and then returning to telework. An employer may agree to allow an employee to utilize expanded FMLA on Mondays, Wednesdays and Fridays, but require work on Tuesday and Thursdays while the child is at home for the duration of the employee’s leave. The DOL is encouraging employers and employees to “collaborate” to achieve flexibility and meet mutual needs.
  • Unless an employee is teleworking, paid sick leave must be taken in full-day increments and cannot be taken intermittently for all qualifying reasons other than the qualifying reason related to child care issues. In contrast, if an employee and employer agree, an employee may take paid sick leave intermittently if the employee is taking paid sick leave to care for his/her child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19-related reasons.
  • Employees are not entitled to leave under the FFCRA if an employer temporarily closes a worksite because it has no work for employees to do. Similarly, employees that are furloughed after April 1, 2020, are not entitled to any paid leave under the FFCRA, even if the employer remains open in other respects. This is true whether the employer closes a worksite for lack of business or because it is required to close all or part of its business pursuant to a federal, state or local directive. However, if an employee was on paid leave under the FFCRA before he or she was furloughed or the employer closed, the employer must pay for any qualifying leave already used before the furlough or closure. Employees that are furloughed or unable to work because the employer’s worksite has closed may be eligible for unemployment compensation.
  • If an employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee may not use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19-qualifying reason, even if the reduction in hours was somehow related to COVID-19. However, as noted above, employees can take paid sick leave or expanded family and medical leave if a COVID-19-qualifying reason prevents the employee from working his or her full schedule.
  • The DOL has also made clear that an employee is not entitled to collect unemployment insurance benefits for any time in which the employee receives pay for paid sick leave and/or expanded FMLA under the Act. Such pay would make the employee not eligible for unemployment. However, it’s important to note that each state has its own set of rules, and some might permit workers to obtain partial unemployment benefits when hours or pay has simply been reduced.
  • The DOL also clarified that, generally, employers must continue healthcare coverage for employees taking FFCRA leave.
  • Finally, the DOL clarified that employers may not require employees to concurrently use preexisting leave under the employer’s normal policies while an employee is on FFCRA leave, nor can employers require employee to supplement their pay while on FFCRA. However, employees may choose to do so, if the employer agrees. For example, if an employee is receiving 2/3 of his normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and the employer permits it, the employee may use his preexisting employer-provided paid leave to get the additional 1/3 of his normal earnings so that he receive his full normal earnings for each hour. Employers will not receive a tax credit for any additional amount that they allow employees to supplement their FFCRA leave by preexisting leave from the employer’s normal policies.
  • For assistance in implementing and complying with the Families First Coronavirus Response Act, please contact your McAfee & Taft Labor & Employment attorney.