On Friday, March 27, 2020, the United States Department of Labor (DOL) issued additional guidance in the form of questions and answers (Q&A). On March 28th, DOL revised and supplemented this guidance. (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions) There are a total of fifty-nine (59) Q&As, which provide helpful and detailed information on all aspects of the FFCRA.
This update discusses select Q&A’s and is not an exhaustive description of the guidance. For a complete list of the questions and responses, please visit the Department of Labor’s website, a link to which is included in this update. Highlights include:
- Worksite Closure, Layoff and Furlough (Questions 23-28)
- DOL has clarified eligibility criteria number 1 of the Emergency Paid Sick Leave Act (the employee is subject to a federal, state, or local quarantine of isolation order related to COVID-19), as well as other applications of the FFCRA to worksite closure, layoff and furlough. Either before or after the effective date of the act, if an employee is sent home without pay because a worksite has been closed, or an employee is laid off or furloughed, the employer is not obligated to pay any leave under the FFCRA. This applies to both closures for lack of work and as a result of a federal, state or local directive. If the worksite is closed while an employee is on leave, the employee is no longer entitled to FFCRA leave as of the date of closure. Further, if an employee’s work hours are reduced because of lack of work, no FFCRA leave must be paid. In these situations, an employee may be eligible for unemployment insurance benefits.
- Small Business Exemption (Question 4)
- Employers with fewer than fifty (50) employees should document why their business meet the criteria that complying with the FFCRA would jeopardize the viability of the business. Additional details about the how to obtain the exemption will be provided in forthcoming regulations; no documentation should be sent to DOL at this time.
- Retroactivity (Questions 1 and 13)
- The requirements of the FFCRA are not retroactive. The obligation to provide leave under the Act begins on April 1, 2020.
- Employment for at Least Thirty Calendar Days (Question 14)
- For the purposes of expanded family and medical leave, an employee is considered to have been employed for thirty (30) calendar days if he was on the employer’s payroll for the thirty (30) calendar days immediately prior to the day the employee’s leave would begin. Employment as a temporary employee will count towards the thirty (30) days if the employee is subsequently hired on a full time basis.
- Documentation (Questions 15 and 16)
- In order to be able to claim the FFCRA tax credit, an employer must keep and an employee must provide documentation regarding the need for leave. For leave to care for a son or daughter because of school closure or child care needs, a record of the notice of such closure must be provided and maintained (for example, governmental closure order; daycare notice; newspaper; email; or website publication). Employers should consult IRS applicable forms, instructions and information for the procedures that must be followed to claim the tax credit.
- Intermittent Leave (Questions 20 - 21)
- Employers may agree to provide intermittent leave to employees who are teleworking and who are unable to work their normal work schedules because of a qualifying FFCRA reason. The increments of intermittent leave must be agreed upon by the employer and employee. DOL encourages employers and employees to collaborate to achieve flexibility. Employees who are working at their usual worksite may not take intermittent leave if the qualifying reason for the sick leave relates to a quarantine or isolation order; the employee experiencing symptoms or having been advised to self-quarantine; or caring for an individual who is subject to quarantine or isolation order. Such leave must be taken in full day increments. In contrast, if the employer or employee agree, intermittent leave may be taken if the employee is caring for a son or a daughter because of school closure or child care needs. (This applies to both teleworking and employer’s worksite.)
- Tax Credit (Questions 31-34)
- If an employee requests and an employer agrees, the employee may opt to receive existing employer provided leave benefits for all or part of the FFCRA leave time period in order to supplement reduced leave pay under FFCRA. However, employers are not required to permit employees to use existing leave to supplement the FFCRA leave and cannot require the employee to use employer provided leave. Further employers may not claim and will not receive tax credit for such supplemental amounts.
- Interplay of Expanded Family and Medical Leave with previously taken FMLA Leave (Question 44)
- DOL clarifies that an employee is only entitled to take 12 weeks of FMLA leave during a given leave year, thus, how much Expanded Family and Medical Leave to which an employee is entitled depends on how much leave has already been taken during the 12-month period the employer uses for FMLA leave. For example, if an employer uses a calendar year for purposes of FMLA leave, and an employee took two weeks of FMLA leave in January 2020 to undergo and recover from surgery, that employee would only be entitled to the remaining 10 weeks of Expanded Family and Medical Leave. If an employer previously was not covered under the FMLA (i.e., it had less than 50 employees), this analysis would not apply and employees would be entitled to twelve weeks of paid leave under the Act if they qualify.
- Interplay of FMLA Leave after taking Expanded Family and Medical Leave (Question 45)
- DOL clarifies that an employee may only take a total of 12 workweeks of FMLA leave during a 12-month period , including Expanded Family and Medical Leave. Thus, if an employee takes four weeks of Expanded Family and Medical Leave in April 2020 to care for a child, that employee would, only be entitled to take eight more weeks of FMLA leave for the remainder of 2020. The DOL goes on to clarify the interplay with sick leave and states that while paid sick leave is not a form of FMLA leave, if an employee takes emergency paid sick leave concurrently with Expanded Family and Medical Leave (and therefore is paid for the first two weeks (10 work days)), which would have otherwise been unpaid, then those two weeks do count toward the 12 workweek in the 12-month period limitation.
- Definition of a “Health Care Provider” for purposes of determining individuals who can advise self-quarantine due to concerns related to COVID-19 (Question 55)
- The term “Health Care Provider,” as used to describe individuals, who can advise to self-quarantine for the purposes of Emergency paid sick leave means “a licensed doctor of medicine, nurse practitioner or other health care provider permitted to issue a certification for purposes of the FMLA.”
- Definition of a “Health Care Provider” who may be exempt from Emergency paid sick leave/Expanded Family and Medical Leave (Question 56)
- A “Health Care Provider” who an employer may consider exempt from paid sick leave or expanded family and medical leave is “anyone employer at any doctor’s office, hospital, health care center, clinic, post-secondary educational 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.” DOL goes on to state that “this includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
- Definition of an “Emergency Responder” who may be exempt from paid sick leave/ Expanded Family and Medical Leave (Question 57)
- An “Emergency Responder” who an employer may consider exempt from paid sick leave or Expanded Family and Medical Leave is defined as “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.” DOL provides an extensive list of illustrative examples including fire fighters, emergency medical services, personnel, physicians, nurses, paramedics, etc., and includes “any individual that the highest official of a state or territory (i.e., the Governor of Louisiana) … determines is an emergency responder necessary for that state’s … response to COVID-19.”
- Clarifying When a Small Business may apply for an exemption to the provisions of the Emergency Paid Sick Leave Act and Emergency Family Medical Leave Expansion Act (Question 58)
- The FFCRA provides that an employer with fewer than 50 employees could be exempt from providing (1) emergency paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (2) expanded family and medical leave due to school or place of care closures or child provider unavailability for COVID-19 related reasons when doing so would “jeopardize the viability of the small business.” DOL has clarified that a small business may claim this exemption if “an authorized officer of the business has determined that:” Providing such 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 employees requesting such 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.
- Determining whether a small business with fewer than 50 employees is exempt from providing paid sick leave or Expanded Family and Medical Leave (Question 59)
- DOL clarifies that a small business is exempt from providing its employees with paid sick leave and Expanded Family and Medical Leave under the Act only if the following conditions are met:
- Employer employs fewer than 50 employees;
- Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable due to COVID-19 related reasons; and
- An authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.
- This Response by the Department of Labor suggests that an employer with less than 50 employees may still have to provide ten days of emergency paid sick leave to an employee who is unable to work or telework because the employee falls within one of the first four qualifying conditions under the Emergency Paid Sick Leave provisions.
If you have any further questions, please do not hesitate to contact any member of the Taylor Porter Employment, Labor & Benefits Practice Group.
 I.e., because the employee is unable to work or telework because: (1) employee is quarantined or isolated by Federal, State or local order; (2) employee is advised by a health care professional to self-quarantine due to concerns related to COVID-19; (3) employee is experiencing symptoms of COVID-19 and seeking medical diagnosis; (4) employee is caring for an individual subject to quarantine or isolation by federal, state or local order or by direction of a health care professional.
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