DOL Issues Further Guidance On The FFCRA Paid Provisions

On Thursday, March 26, 2020, the Department of Labor (“DOL”) published initial guidance concerning the Emergency Family and Medical Leave Expansion Act (“FMLA Expansion”) and Emergency Paid Sick Leave Act (“Emergency Paid Sick Leave”) (collectively, the “paid leave provisions”) of the Families First Coronavirus Response Act (“FFCRA”) in the form of questions and answers (“Q&As”). This initial guidance included approximately 14 Q&As.   Over the past few days, however, the DOL has added additional information, bringing the current guidance to 59 Q&As that cover all aspects of the paid leave provisions, including recordkeeping requirements and the exemption for employers with fewer than 50 employees. We encourage all employers to visit the DOL’s Families First Coronavirus Response Act: Questions and Answers website to review the additional Q&As. We have identified the following the key points to bring to your attention:

• Documentation and Recordkeeping:

  Employers who intend to claim a tax credit under the FFCRA for payment of leave under the paid leave provisions should retain all appropriate IRS required documentation, as specified in applicable IRS forms, instructions, and information,  in order to obtain the tax credit.   For leave under the FMLA Expansion, the DOL suggests that this documentation may include a notice of closure or unavailability from the child’s school, place of care, or child care provider. An employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided by the employee.

• Small Business Exemption:

  A small business is only exempt from certain paid leave provisions if providing an employee such leave would jeopardize the viability of the business as a going concern. This exemption applies only if 1) the employer employs fewer than 50 employees; 2) 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 3) an authorized officer of the business has determined that:

1. 1. The provisions of the FMLA Expansion or Emergency Paid Sick 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;
   2. The absence of the employee or employees requesting pay under either paid leave provision 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
   3. 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 leave under the paid leave provisions, and these labor or services are needed for the small business to operate at a minimal capacity.

• Health Care Providers Who May Be Excluded:

  The DOL provides a broad definition of “health care provider” as it relates to those employees an employer may exclude from the paid leave provisions. For this purpose, a “health care provider” 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. It 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 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.

• Full-Time and Part-Time Defined:

  For purposes of Emergency Paid Sick Leave, a “full-time” employee is defined as an employee who is normally scheduled to work 40 or more hours per week. A “part time” employee is someone who is scheduled to work fewer than 40 hours per week.

• Intermittent Use of Leave:

  Leave under both paid leave provisions may be taken intermittently when teleworking if an employee is unable to telework their normal schedule of hours due to a qualifying reason and the employer agrees to the intermittent leave. When an employee is still employed at their usual worksite, however, an employee may not take intermittent Emergency Paid Sick Leave if the leave is to care for themselves or another individual who has symptoms of COVID-19 and is seeking medical diagnosis or is quarantined or self-isolated due to COVID-19. Under these circumstances, 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. On the other hand, leave under the FMLA Expansion may still be used intermittently if an employee is working at the usual worksite.

• FMLA Limited to 12 Weeks:

  For employers who employ 50 or more employees and are covered under the standard Family and Medical Leave Act, an employee may only take 12 weeks of FMLA leave or FMLA Expansion leave in a 12-month period. Therefore, an employee who has previously used FMLA leave within a 12-month period is only entitled to use their remaining leave, if any, under the FMLA expansion.  

• Reduction in Hours:

   If an employee’s work hours are reduced because an employer does not have work for the employee to perform, the employee may not use leave under the paid leave provisions to make up for the hours that the employee 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.

• Furloughs and Layoffs:

  An employee is not entitled to payment under any paid leave provision after being furloughed or laid off. Employers who employ 500 or more employees should be mindful that employer coverage under the paid leave provisions (fewer than 500 employees) is determined on the day that the employee’s paid leave would start, so any reduction in force that reduces the number of employees below the 500 employee threshold may affect an employer’s obligations to provide leave under the paid leave provisions. Reductions in force may also impact loan forgiveness under the CARES Act. Additional information on the CARES Act can be found on our website at CARES Act – Paycheck Protection Program FAQ.

Although these Q&As do not hold the same weight as formal regulations from the Secretary of Labor, they are likely to be the best guidance we will receive prior to the effective date of April 1, 2020 for the paid leave provisions of the FFCRA. In addition, although the DOL has indicated that it will not bring enforcement actions for violations occurring within 30 days of the enactment of the FFCRA, this does not prevent employees from bringing private causes of action for violations during this time. We encourage you to continue to seek legal counsel during these uncertain times as the issues surrounding the paid leave provisions continue to evolve.  

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.