Although the US Department of Labor (DOL) has still not implemented regulations regarding the Families First Coronavirus Response Act (“FFCRA”), the DOL has updated its Q&A Guidance to provide additional information regarding some of the questions originally unanswered or not covered when it was originally released on March 25, 2020. The DOL also previously issued a sample notice and a Field Assistance Bulletin.
Please note that the newly updated Q&A Guidance is not in place of the regulations, but rather offers some guidance in the interim until the regulations are released. Below is a summary of what is new:
If my business has fewer than 50 employees, and implementing the FFCRA would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
An employer with fewer than 50 employees is exempt from providing FFCRA leave when doing so would jeopardize the viability of the employer as a going concern. An employer may claim this exemption only if the:
- 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 employer has determined that at least one of the following three conditions is satisfied:
- The provision of FFCRA leave would result in the employer’s expenses and financial obligations exceeding available revenues and cause the employer to cease operating at a minimal capacity;
- The absence of the employee or employees requesting FFCRA leave would entail a substantial risk to the financial health or operational capabilities of the employer 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 FFCRA leave, and these labor or services are needed for the employer to operate at a minimal capacity.
Note: the DOL is encouraging employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
I employ healthcare providers. Who is a “health care provider” who may be excluded from FFCRA leave and how do I elect to exclude my healthcare provider employees?
A “health care provider” employee is anyone employed 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition also includes: (i) any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility; and (ii) 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.
Note: the DOL is encouraging employers to “be judicious” when using this definition to exempt health care providers from the provisions of the FFCRA.
What is a full-time or part-time employee under the FFCRA?
For purposes of Paid Sick Leave, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week. A part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.
In contrast, the emergency FMLA 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.
How do I know whether an employee has “been employed for at least 30 calendar days” for purposes of expanded FMLA leave?
An employee is considered to have been employed by an employer for at least 30 calendar days if the employee was on its payroll for the 30 calendar days immediately prior to the day the emergency FMLA leave would begin. Additionally, if an employee was laid off after March 1, 2020, and is subsequently rehired, the employee will be eligible for expanded FMLA leave if the employee had work 30 of the last 60 calendar days for the employer.
Who is a son or daughter?
Under the FFCRA, a “son or daughter” is the employee’s own child (under 18 years of age), which includes a biological, adopted, or foster child, a stepchild, a 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. A “son or daughter” is also an adult son or daughter (one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.
What records do I need to keep when my employee takes FFCRA leave?
If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded FMLA leave wages, you should retain appropriate documentation in your records. The Internal Revenue Service (IRS) has not yet, but will be implementing forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
What documentation can I require my employee to provide in order to get FFCRA leave?
An employee must provide documentation in support of a request for paid sick leave as specified in the IRS forms, instructions, and information that is to be issued by that agency.
An employer may also require an employee to provide additional documentation in support of a request for FFCRA leave taken to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a 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 expanded family and medical leave.
Am I required to provide FFCRA leave to an employee who does not provide sufficient documentation in support of such leave?
No. You are not required to provide FFCRA leave if materials sufficient to support the applicable tax credit have not been provided to you by the employee.
When is an employee “able to telework” under the FFCRA?
Whether an employee is able to telework depends on whether the employer permits or allows an employee to perform work while at home or at a location other than the normal workplace. Telework is work for which normal wages must be paid and is not compensated under the FFCRA.
What does it mean to be unable to work, including telework for COVID-19 related reasons?
An employee is unable to work if the employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.
If you and your employee agree that the employee will work the normal number of hours, but outside of the employee’s 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 the employee from working that schedule.
If an employee is or becomes unable to telework, is the employee entitled to FFCRA leave?
If an 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 paid sick leave, then the employee is entitled to take paid sick leave.
Similarly, if the employee is unable to perform those teleworking tasks or work the required teleworking hours because of a need to care for his or her child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then the employee is entitled to take expanded FMLA leave. Of course, to the extent an employee is able to telework while caring for his or her child, FFCRA leave is not available.
May an employee take FFCRA leave intermittently while teleworking?
Yes, if the employer allows it.
May intermittent FFCRA leave be taken incrementally while teleworking?
Yes. If the employer allows it, an employee may take intermittent leave in any increment, provided that the employer and employee agree on the increment. For example, if the employer and employee agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
Note: the DOL is encouraging employers and employees to collaborate to achieve flexibility and meet mutual needs, and is supportive of such voluntary arrangements that combine telework and intermittent leave.
May an employee take paid sick leave intermittently while working at the usual worksite (as opposed to teleworking)?
It depends on why the employee is taking paid sick leave and whether the employer agrees.
If the employee is not teleworking, paid sick leave for qualifying reasons related to COVID-19 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;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee 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; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Unless the employee is teleworking, once an employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until either: (1) the employee uses the full amount of paid sick leave; or (2) the employee no longer has a qualifying reason for taking paid sick leave.
If an employee no longer has a qualifying reason for taking paid sick leave before the paid sick leave is exhausted, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.
However, if the employer and employee agree, an employee may take paid sick leave intermittently if 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. For example, if a child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take paid sick leave on Mondays, Wednesdays, and Fridays to care for the child, but work at the normal worksite on Tuesdays and Thursdays.
May an employee take expanded FMLA leave intermittently while his or child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking?
Yes, if the employer allows it.
If I closed my worksite before April 1, 2020, can an employee still get FFCRA leave?
No. If, prior to the FFCRA’s effective date, the employer sent an employee home and stopped paying that employee because the employer does not have work for that employee to do (either for lack of business or because required to close pursuant to a governmental directive), the employee will not get FFCRA leave, but may be eligible for unemployment insurance benefits.
If I close my worksite on or after April 1, 2020, either before an employee goes out on FFCRA leave or while the employee is on FFCRA leave, do I still need to pay for FFCRA leave?
No. If the employer closes the worksite after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid FFCRA leave but may be eligible for unemployment insurance benefits.
If an employer closes while an employee is on FFCRA leave, the employer must pay for any paid FFCRA leave the employee used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to FFCRA leave, but may be eligible for unemployment insurance benefits.
If my worksite is open, but I furlough employees on or after April 1, 2020, can my employees receive paid FFCRA leave?
No. If the employer furloughs an employee because it does not have enough work or business for the employee, the employee is not entitled to then take FFCRA leave. However, the employee may be eligible for unemployment insurance benefits.
If I reduce scheduled work hours, can employees use FFCRA leave for the hours that they are no longer scheduled to work?
No. If the employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee may not use FFCRA leave for the hours that he or she is 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.
The employee may, however, take paid FFCRA leave if a COVID-19 qualifying reason prevents the employee from working his or her full schedule. If the employee does, the amount of leave to which the employee is entitled is computed based on his or her work schedule before it was reduced.
May employees collect unemployment insurance benefits for time in which they receive pay for FFCRA leave?
No. If the employer is paying an employee FFCRA leave, the employee is not eligible for unemployment insurance.
If an employee elects to take FFCRA leave, must the employer continue health coverage? If an employee remains on leave beyond the maximum period of expanded FMLA leave, does the employee have a right to keep his or her health coverage?
If the employer provides group health coverage that the employee has elected, the employee is entitled to continued group health coverage during your expanded FMLA leave on the same terms as if the employee continued to work. An employee generally must continue to make any normal contributions to the cost of his or her health coverage.
If the employee does not return to work at the end of his or her expanded FMLA leave, the employee should check with the employer to determine whether he or she is eligible to keep health coverage on the same terms (including contribution rates). If the employee is no longer eligible, he or she may be able to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
If an employee elects to take paid sick leave, the employer must continue health coverage.
May an employee use an employer’s existing PTO benefits and FFCRA leave concurrently for the same hours?
Not unless the employer allows it. If an employer is eligible to take FFCRA leave, as well as paid leave that is already provided by the employer, the employee must choose one type of leave to take unless the employer allows otherwise. An employee may not simultaneously take both, unless the employer agrees to allow the employee to supplement the amount he or she receives from FFCRA leave, up to the employee’s normal earnings, with existing PTO benefits. For example, if the employee is receiving 2/3 of his or her normal earnings from FFCRA leave and the employer permits, the employee may use his or her existing PTO benefits to get the additional 1/3 of normal earnings so that the employee receives his or her full normal earnings for each hour.
If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with PTO that the employee may have under my PTO policy?
If your employee chooses to use existing PTO leave you have provided to supplement FFCRA leave, yes; otherwise, no. FFCRA leave is in addition to employees’ existing PTO entitlements. Under the FFCRA, if you allow it, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from FFCRA leave, up to the employee’s normal earnings.
Does an employee have a right to return to work if taking FFCRA leave?
Generally, yes, unless an exception exists (see next question). The FFCRA requires employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.
Are there exceptions to an employee’s right to return to work following FFCRA leave?
Yes.
- Employees are not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether FFCRA leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if leave had not been taken.
- An employer may refuse to return an employee to work in the same position if the employee is a highly compensated “key” employee as defined under the FMLA.
- If the employer has fewer than 25 employees, and the employee took 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, the employer may refuse to return the employee to work if all four of the following hardship conditions exist:
- the position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
- the employer made reasonable efforts to restore the employee to the same or an equivalent position;
- the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
- the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after leave began, whichever is earlier.
Does an employee qualify for expanded FMLA leave under FFCRA if the employee has already used some or all of his or her unpaid leave under FMLA?
An employee’s eligibility for expanded FMLA leave under FFCRA depends on how much leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. An employee may take a total of 12 workweeks for FMLA or expanded FMLA leave reasons during a 12-month period. If the employee has taken some, but not all, 12 workweeks of his or her leave 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 has already taken 12 workweeks of
FMLA leave during this 12-month period, the employee may not take additional expanded FMLA leave.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices.
For more updates on this topic and other legal updates related to the COVID-19 pandemic, please visit our COVID-19 Legal Resource Page by clicking here.
