April 3, 2020

By: Robbins, Salomon & Patt, Ltd.

The Department of Labor (DOL) continues to update its Families First Coronavirus Response Act (FFCRA) Guidance with the Act going into effect April 1, 2020.  Over the last week, the DOL has supplemented the FFCRA FAQ several times to clarify lingering questions.

While a “guidance” technically has no legal effect, it is not binding on the courts and is only a pronouncement if what the DOL believes Congress intended. it passed the Act, it nevertheless represents the thinking of the Administration and the Agency charged with enforcing the Act. Here are some of the highlights.

Documentation Necessary to support emergency FMLA or paid sick leave. 

The DOL says that employees must provide employers with documentation to support emergency FMLA or Paid Sick Leave (PSL). The FFCRA is silent about verifying leave requests, so this guidance is helpful.

Is an employer required, to provide a quarantine or isolation order or a school closing notice if it takes a tax credit for paying an employee emergency leave?

The DOL says no, an employer is “not required to provide leave if materials sufficient to support the applicable tax credit.”

The DOL advises employers to retain such material for their records. The IRS will shortly be issuing forms with instructions on how to take the payroll tax credits.

The DOL also indicates that “all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.”

What happens when someone is unable to telework?

The emergency FMLA and PSL qualifying events require employees to be unable to work or telework to qualify for FFCRA leave. An employee is unable to telework when an employer provides the employee with work that can be performed at home, but the employee can’t do the work because of one of the FFCRA qualifying reasons. This would include taking care of a child because of a school or child care closure, although the DOL cautions, “to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.”

The DOL also says that an employee can telework when the employee and the employer agree that the employee can work the normal number of hours, but outside of the normally scheduled hours (e.g., early in the morning or late at night).

How are “Health Care Provider” and “Emergency Responder” defined?

The FFCRA allows employers to exempt “health care provider” and “emergency responder” employees from the emergency FMLA and PSL benefits. FFCRA, however, does not define either term.

The DOL defines “health care provider” broadly as “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 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.

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. This 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.”

The DOL defines “emergency responder” 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. 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.

This 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.”

When does the small business exception apply?

Employers with fewer than 50 employees are exempt from providing emergency FMLA or PSL if doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an “authorized officer” of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical 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 paid sick leave or expanded family and medical 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
  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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate.

Intermittent use of PSL or emergency FML 

Employees may generally use emergency FMLA intermittently when teleworking. If an employee is working at the employer’s place of business, the employee may only use intermittent leave with the employer’s permission.

As for PSL, unless an employee is teleworking, PSL must be taken in full-day increments. Employees may only use intermittent emergency PSL if they are caring for a child whose school or daycare provider is closed because of COVID-19 reasons.

Layoffs, Furloughs, and Closures. 

If an employer closes a worksite on or after April 1, but before an employee goes out on leave, the employee is not entitled to PSL or emergency FMLA leave.

  • What happens when an employer closes an employee’s worksite while the employer is on protected FFCRA leave? The employer must pay the employee for benefits used before the employer closed, but as of the date of the worksite closure the employer is no longer liable for FFCRA benefits. This remains true even where the employer intends on reopening in the future.
  • Is an employer liable for FFCRA benefits if furloughed? The DOL says “no.”
  • If an employer reduces an employee’s work schedule, can the employee use PSL or emergency FMLA to make up the hours he or she is no longer scheduled to work? No, because the employee is not prevented from working those hours due to COVID-19.

Supplementing FFCRA Paid Leave

The DOL says that, absent employer-employee agreement, an employee cannot use preexisting leave entitlements and FFCRA leave at the same time so that the employee can make up the gap between capped FFCRA paid leave and his or her normal wages. Unless an employer agrees to such use, the employee must choose one type of leave. If the employer does allow an employee to supplement FFCRA leave with preexisting leave entitlements, an employer won’t be eligible for FFCRA tax credits on the supplemental paid leave (only the FFCRA paid leave).

Also note that an employer cannot force an employee to supplement FFCRA paid leave with existing paid leave. Any supplement must be agreed upon.

Regular FMLA remains unpaid. 

The DOL clarified that the only type of paid leave per the Family and Medical Leave Act is the single scenario identified in the FFCRA, i.e., an employee must care for a child whose school or place of care is closed, or child care provider is unavailable due to COVID-19 reasons. So, the usual FMLA qualifying events remain unpaid job-protected leave. Of course, employers must still consider the FFCRA’s emergency PSL.