DOL Issues Additional Guidance on FFCRA Critical Issues That Went Into Effect Today – April 1, 2020

by Teresa R. Tracy

The federal Families First Coronavirus Response Act (FFCRA) became effective today, April 1, 2020. The Department of Labor (DOL) issued additional guidance just a few days ago on Saturday, March 28, 2020 in the form of 59 questions and answers for employers on what the new leave laws require. The new guidance can be found here. For your convenience, we have created highlights of this new guidance as they apply to private sector employers.

For the purposes of this summary, FFCRA refers to the federal Families First Coronavirus Response Act, which provides for Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA).

1. Effective dates, closures, and furloughs:

The FFCRA’s paid leave provisions are effective on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020. The FFCRA is not retroactive; therefore any leave given to the employee that would have entitled the employee to FFCRA leave prior to the effective date does not count against the full entitlement after the effective date.

If the employer closed an employee’s worksite before April 1, 2020 and stopped paying the employee, the employee is not eligible for paid leave under the FFCRA.

If the employer closes an employee’s worksite on or after April 1, 2020, the employee is not eligible for the FFCRA’s paid leaves after the date of the closure. This is true even if the employer tells the employee that it will reopen at some time in the future. Of course, if the employer reopens and the employee resumes work, the employee would at that point be eligible for FFCRA leave for a qualifying reason.

If the employer closes an employee’s worksite while the employee is on a paid leave under the FFCRA, the employer must provide paid FFCRA leave that the employee used before the employer closed. As of the date the employee’s worksite is closed, the employee is no longer entitled to any paid leave under the FFCRA.

Similarly, if the employer is open but furloughs the employee on or after April 1, 2020, the employee is not entitled to any FFCRA leave after the furlough date.

Lastly, if the employer reduces the employee’s scheduled work hours, the employee is not entitled to any FFCRA leave for the hours that the employee is no longer scheduled to work.

2. Clarification of definitions:

“Emergency responder,” for the purpose of employees who may be excluded from FFCRA leave, is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. It also includes any individual that the highest official of a state or territory (including the District of Columbia) determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

“Employee” has the same definition as it does under the Fair Labor Standards Act (FLSA), and includes all U.S. and Territorial employees.

“Employer,” as used in the federal Family Medical Leave Act (FMLA), does not apply to EFMLA, even though EFMLA in general is a type of FMLA leave.

“Full-time employee,” for the purpose of EPSL leave, is an employee who is normally scheduled to work 40 or more hours per week. However, EFMLA does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

“Health care provider,” for the purpose of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for EPSL, means a licensed doctor of medicine, nurse practitioner, or other health care provider to issue a certification for purpose of FMLA.

“Health care provider,” for the purpose of who may be exempted from FFCRA leave by the employer, is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary education institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. It also includes any individual that the highest official of a state or territory (including the District of Columbia) determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

“Part-time employee,” for the purpose of EPSL, is an employee who is normally scheduled to work fewer than 40 hours per week. However, EFMLA does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

“Son or daughter” is the employee’s own child, which includes the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee is standing in loco parentis (someone with day-to-day responsibilities to care for or financially support a child). It also includes an adult son or daughter (i.e., 18 years or older) who has a mental or physical disability and is incapable of self-care because of that disability, (This summary uses the term “child” to refer to either a son or daughter, as defined).

3. Counting employees for coverage:

The FFCRA leave provisions only apply to employers with fewer than 500 employees. The employee count for coverage is done at the time the employee’s leave is to be taken, and includes full-time, part-time, employees on leave, temporary employees who are jointly employed by the employer and another employer, as well as day laborers supplied by a temporary agency. Typically a corporation with separate establishments or divisions is considered to be a single employer and all of these employees count toward the threshold. Where a corporation has an ownership interest in another corporation, the joint employer test under the FLSA will apply to determine whether all of their common employees count toward the threshold. Where two or more entities are separate employers, all of their employees will be counted together toward the threshold if the entities meet the integrated employer test under the FMLA.

4. Employee eligibility dates:

While an employee is eligible for EPSL, regardless of length of employment, the employee must have been employed for 30 calendar days in order to qualify for EFMLA leave. Thus, for example, if an employee requested EFMLA on April 10, 2020, the employee must have been employed since March 11, 2020; the same employee would be entitled to EPSL (assuming a qualifying reason for the EPSL existed), immediately on April 1, 2020 (the effective date of the FFCRA) and regardless of when the employee was hired.

5. Taking advantage of the small business exemption:

If providing the following kinds of FFCRA leave would jeopardize the viability of the small business (i.e., an employer, including a religious or nonprofit organization, with fewer than 50 employees), has limited exemptions from certain FFCRA leave requirements. Under these conditions, that small business is exempt from providing:

– EPSL due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and

– EFMLA due to school or place of care closures or child care provider unavailability for COVID-19 related reasons

A small business may claim this exemption only if an authorized officer of the business has determined that:

– the provision of EPSL or EFMLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operation at a minimal capacity

– the absence of the employee(s) requesting EPSL or EFMLA 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(s) requesting EPSL or EFMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

A small business that wants to take advantage of the small business exemption should document why the business meets the criteria set forth in as yet unpublished regulations. No materials should be sent to the DOL in this regard at this point.

6. Counting hours of part-time employees:

A part-time employee is entitled to leave for the average number of work hours of that employee in a two-week period. Often, this is the number of hours the employee is normally scheduled to work. However, if the normal hours scheduled are unknown, or if the employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that. If this calculation cannot be made because the employee has not been employed for at least six months, (a) if there was an agreement at the time of hire how many hours the employee would work, this is the number to be used; (b) if there is no such agreement, the number of hours is calculated based on the average hours per day the employee was scheduled to work over the entire term of employment.

7. Calculating the pay due to employees:

The amount payable depends on why the employee is taking leave as well as the employee’s normal schedule.

EFMLA requires the employer to pay an employee for hours the employee would have been normally scheduled to work, even if it is more than 40 hours is a week.

EPSL only requires that paid sick leave be paid up to 80 hours over a two-week period.

If the employee is taking EPSL because the employee is unable to work or telework due to a need for leave because the employee (1) is subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, the employee will be paid the greater of the following for each applicable hour, up to a maximum of $511/day or $5,110 paid over the entire EPSL period:

– the employee’s regular rate of pay

– the FLSA minimum wage

– the applicable state or local minimum wage

If the employee is taking EPSL because the employee is (1) caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for the employee’s child whose school or place of care is closed, or child care provider is unavailable due to COVID-19 reasons; or (3) experiencing any other substantially-similar condition that may arise as specified by the Secretary of HHS, the employee is entitled to compensation at 2/3 of the greater of the amounts above, subject to a maximum of $200/day or $2,000 paid over the entire EPSL period.

If the employee is taking EFMLA, the employee may take EPSL for the first days (or substitute any accrued vacation leave, personal leave, or medical or sick leave), and then for the following 10 weeks the employee must be paid for the leave at an amount no less than 2/3 of the employee’s regular rate of pay for the hours the employee would be normally scheduled to work, up to a maximum of $200/day or $12,000 for the twelve weeks that include both EPSL and EFMLA. However, the employee will not receive more than $200/day or $12,000 for the twelve weeks that include both EPSL and EFMLA if the employee is on leave to care for the employee’s child whose school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons.

For the purpose of the FFCRA, an employee’s regular rate of pay is the average of the employee’s FLSA regular rate over a period of up to six months prior to the date on which the employee takes leave under FFCRA. If the employee has not worked for the current employer for six months, the regular rate is the average of the employee’s regular rate of pay for each week worked for the current employer. Commissions, tips, or piece rates are included in this calculation to the same extent that they are included in calculating the regular rate under the FLSA. Alternatively, the employer can compute the regular rate by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

8. The interaction between EPSL, EFMLA and traditional FMLA leave:

The total that an employee is paid for EPSL is capped at 80 hours, even if the EPSL is taken for two different reasons during course of EPSL. An employee is entitled to EPSL regardless of how much traditional federal Family and Medical Leave Act (FMLA) leave the employee previously took.

However, if the employee is at home with the employee’s child because the child’s school or place of care is closed, or child care provider is unavailable, the employee may be eligible for both EPSL and EFMLA. EPSL would cover the first 10 workdays of EFMLA (which are otherwise unpaid under EFMLA, unless the employee elects to use accrued vacation, personal or medical or sick leave under the employer’s policy). After the first 10 workdays have elapsed, the employee will be paid 2/3 of the employee’s regular rate for the hours the employee would have been scheduled to work in the subsequent 10 weeks under EFMLA.

The employee can only receive the additional 10 weeks of EFMLA if the reason for the leave is to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

In order to be eligible for EFMLA, the employee must have been on the current employer’s payroll for 30 calendar days immediately prior to the date the EFMLA would begin. If the employee worked for the employer as a temporary employee and was subsequently hired as a regular employee, any days previously worked as a temporary employee count toward this 30-day eligibility period.

EFMLA is a type of FMLA leave. The FFCRA does not make all FMLA leave paid. The only type of leave that is paid leave is for reasons specified in the EFMLA when such leave exceeds 10 days (i.e., only leave taken because the employee must care for a child whose school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons). Furthermore, to take traditional FMLA leave, the employee must be eligible for it under the traditional FMLA requirements.

If the employer was covered by FMLA prior to April 1, 2020, the employee’s eligibility for EFMLA leave depends on how much leave the employee already took during the 12-month period that the employer uses for FMLA leave. Thus, assuming the employer and employee are covered by the FMLA, the employee may take a total of 12 workweeks for FMLA or EFMLA during a 12-month period. If the employee had taken some, but not all, 12 workweeks under FMLA during the current 12-month period determined by the employer, the employee may take the remaining portion of leave available. If the employee already took 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional EFMLA leave.

If the employer becomes covered by FMLA after April 1, 2020, an FMLA-eligible employee is entitled to a maximum total of 12 workweeks under some combination of FMLA and EFMLA during the applicable 12-month period.

In tracking the use of FMLA and EFMLA leaves, an employee may only take a total of 12 workweeks of leave during a 12-month period (calculated in the same way as under the FMLA), including any EFMLA leave. If an FMLA-eligible employee takes some, but not all 12, workweeks of EFMLA leave by December 31, 2020, the employee may still take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. The EFMLA is only available until December 31, 2020; after that the FMLA-eligible employee could only take FMLA leave.

An employee is entitled to EPSL regardless of how much leave the employee took or takes under FMLA, because paid sick leave is not a form of FMLA leave and therefore does not count towards the 12 workweeks of FMLA/EFMLA leave. However, if the employee took EPSL concurrently with the first two weeks of EFMLA (which may otherwise be unpaid), then those two weeks do count towards the 12 workweeks in the 12-month period.

9. The interaction between preexisting state or local paid sick leave obligations, employer-adopted leave entitlements, FFCRA leaves, and voluntary supplemental pay:

EPSL leave is in addition to other leave provided under other federal, state, local law obligations, an applicable collective bargaining agreement, or the employer’s existing company policy. Therefore, an employee’s use of EPSL does not generally count against these other obligations.

An employee may not simultaneously take preexisting paid leave that the employer offered (e.g., vacation, personal, medical or sick leave) with a leave under FFCRA unless the employer agrees to allow the employee to supplement the amount received under FFCRA with preexisting paid leave, up to the employee’s normal earnings. An employer cannot require an employee to supplement payments under an FFCRA leave with preexisting employer paid leave time, nor adjust the amount paid under FFCRA, although as indicated at the employee’s request the parties can agree to do this.

An employer may not supplement or adjust the pay required in connection with an FFCRA leave unless the employee chooses to use preexisting paid leave that the employer offered.

Nothing prevents an employer from paying an employee in excess of FFCRA paid leave requirements.

If an employer allows the employee to supplement or adjust the pay required in connection with FFCRA leave, or pays an employee in excess of FFCRA leave requirements, the employer cannot claim and will not receive tax credit for the supplemental amounts.

An employee can only use FFCRA leaves for their designated purposes; an employee cannot use these leaves, separately or together, for non-designated reasons, even if those other reasons are COVID-19 related.

10. Required documents and records:

An employee who wants to take EPSL must provide the employer with supporting documentation as specified in applicable IRS forms, instructions, and information.

An employer may also require the employee to provide it with additional documentation in support of EFMLA taken to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons (e.g., notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to the employee from an employee or official of the school, place of care, or child care provider). The employer must retain this notice or documentation in support of EFMLA, including while the employee may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. If the employer intends to claim a tax credit to be reimbursed for the costs of a leave under the FFCRA, it should retain appropriate documentation in its records. The employer should consult IRS applicable forms, instructions, and information for the procedure to claim a tax credit, including any needed substantiated.

The employer may require an employee who takes EFMLA to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, to provide any additional documentation in support of such leave, to the extent permitted under the certification rules for traditional FMLA requests (e.g., a notice that has been posted on a government, school, or day care website or published in a newspaper, an email from an employee or official of the school, place of care, or child care provider).

For traditional FMLA leave, all certification requirements under the FMLA continue to apply for leave taken as traditional FMLA (e.g., the employee takes leave beyond the two weeks of EPSL because the employee’s medication for COVID-19 related reasons rises to the level of a serious health condition).

11. Teleworking under the FFCRA:

The FFCRA does not require an employer to allow an employee to telework. Telework is work done at home or at a location other than the employee’s normal workplace, for which normal wages must be paid and is not compensated under the leaves provided by the FFCRA.

If the employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for EPSL, the employee is entitled to take EPSL. Similarly, if the employer allows teleworking but the employee is unable to do so because the employee needs to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee is entitled to take EFMLA. Of course, to the extent an employee is able to telework while caring for the employee’s child, EPSL and EFMLA are not available.

12. Intermittent work and FFCRA leaves:

If the employee is teleworking, an employer may, but is not required to, agree to allow an employee to take EPSL or EFMLA on an intermittent basis. The parties can agree that intermittent leave be taken in any specified increment.

If the employee is working at the usual worksite (i.e., not teleworking), EPSL must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because the employee

– is subject to a federal, state or local quarantine or isolation order related to COVID-19

– has been advised by a health care provider to self-quarantine due to concerns related to COVID-19

– is experiencing symptoms of COVID-19 or is seeking medical diagnosis

– is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self- quarantine due to concerns related to COVID-19

– is experiencing any other substantially similar condition specified by the Secretary of HHS

Unless the employee is teleworking, once the employee begins taking EPSL for one of the above reasons, the employee must continue to take EPSL each day unless the employee either (1) uses the full amount of EPSL, or (2) no longer has a qualifying reason for taking EPSL. If the employee no longer has a qualifying reason for taking EPSL before EPSL is exhausted, the employee may take any remaining EPSL at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if both the employer and employee agree, the employee may take EPSL intermittently if the employee is taking paid sick leave to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons.

Intermittent EFMLA leave is only available for an employee who is not teleworking (i.e., who is working at the employee’s regular worksite) while the employee’s child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employer agrees.

13. Group health insurance:

An employee is entitled to continued group health insurance during a paid EFMLA leave, assuming the employee had already elected such coverage, on the same terms as if the employee continued to work. If the employee is enrolled in family coverage, the employer must maintain that coverage during EFMLA, and the employee generally must continue to make any normal contributions to this coverage. If the employee fails to return to work at the end of an EFMLA leave, the employee may have conversion rights under some laws, and may also be eligible to elect COBRA under applicable laws.

If an employee is on an employer-provided group health plan, the employee is entitled to that coverage during EPSL on the same terms as if the employee continued to work. Thus, the requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if the employee continued to work, including the days that the employee is on EPSL. If, under the terms of the group health plan, an individual can elect coverage that becomes effective after completing the waiting period, the coverage must take effect once the waiting period is complete, even if the employee is on EPSL during all or part of that waiting period.

14. Reinstatement rights:

An employer must generally return an employee who has taken FFCRA leave to the same or nearly equivalent job at the end of an FFCRA leave. However, the employee is not protected from employment actions, including layoffs, that would have affected the employee regardless of whether the employee took leave under the FFCRA. The employer must, however, be able to prove that the employee would have been affected by the adverse employment action regardless of whether the employee took FFCRA leave.

The guidance also clarifies that the “key employee” provisions of the traditional FMLA will apply. Employers who did not have FMLA obligations (e.g., the employer or worksite was too small to be covered, or the employee has not worked long enough or sufficient hours) should consult the FMLA to potentially take advantage of this.

Furthermore, if the employer has fewer than 25 employees and the employee took FFCRA leave to care for the employee’s own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions apply, the employee does not have reinstatement rights:

– the employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the employee’s FFCRA leave

– the employer made reasonable efforts to reinstate the employee to the same or equivalent position

– the employer made reasonable efforts to contact the employee if an equivalent or position became available

– the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the employee’s FFCRA leave concludes or the date 12 weeks after the employee’s FFCRA leave began, whichever is earlier.

15. The effect of multiemployer collective bargaining agreements and other multiemployer funds:

An employer may satisfy its obligations under the FFCRA by making contributions to a multiemployer fund, plan or other program in accordance with existing collective bargaining obligations. These contributions must be based on the amount of paid time to which each employee is entitled for the applicable FFCRA leave, based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for their FFCRA leave. Alternatively, the employer may also choose to satisfy its FFCRA obligations by other means, provided they are consistent with its bargaining obligation and collective bargaining agreement.

16. Enforcement:

If an employee believes that their employer has violated the FFCRA, the employee is being encouraged to raise and try to resolve the concern directly with the employer, although the employee is not required to do this. The employee can call 1-866-487-9243, contact the federal agency at www.dol.gov/agencies/whd, go to the nearest federal Wage and Hour Division office, or file a lawsuit without doing any of the above.

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This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.

Please feel free to reach out to any attorney in our Labor & Employment Practice Group with any questions.