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Families First Coronavirus Response Act FAQ

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By: Kathleen C. Peahl, Abby Tucker

On April 1, 2020, the Department of Labor (“DOL”)posted a temporary rule relating to the paid leave provisions of the Families First Coronavirus Response Act (the “FFCRA”), which was enacted to provide additional paid leave to employees in light of the COVID-19 pandemic. The FFCRA addresses the new leave provisions created by the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) Below, we provide a FAQ overview of the temporary regulations and guidance provided by the DOL.

What employers are covered under the EPSLA and the EFMLEA?

Private employers, both for-profit and non-profit entities, that employ between 1 and 500 employees at the time an employee would take leave are covered.

Must public employers comply with EPSLA and the EFMLEA?

Yes. All covered public agencies must comply with both Acts regardless of the number of employees they employ, although such employers may exclude employees who are health care providers or emergency responders.

Which employees count towards the 500 employee threshold?

Employers should only count employees who are employed within the Unites States, which includes individuals in a U.S. Sate, the District of Columbia, or a U.S. territory. Employers should include all full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and lay laborers supplied by a temporary placement agency. Employers should not count independent contractors or employees who have been laid off or furloughed and have not subsequently been reemployed. In general, two or more entities are separate employees unless they meet the integrated employer test under the FMLA. All employees of integrated employers or common employees of joint employers must be counted together.

Can a small business be exempt from providing leave under EPSLA and the EFMLEA if I have under 50 employees?

Yes. An employer with fewer than 50 employees is exempt from providing paid sick time and expanded family and medical leave if doing so would jeopardize the viability of the business as a going concern. A small business is entitled to an exemption if an authorized officer of the business has determined that:

(1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;

(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or

(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

How does a small business with fewer than 50 employees elect this small business exemption?

The employer must document the facts and circumstances for denying employees paid sick leave or expanded family and medical leave. The employer should not send such material or documentation to the Department of Labor, but should retain such records for its own files.

Is an employer required to provide paid leave under the FFCRA to employees on furlough or lay off status who have not been terminated?

No. Employers are not required to provide paid sick leave or expanded family and medical leave to furloughed employees or employees whose worksites have closed, even if the employees were furloughed or the worksites close after April 1, 2020. If an employer closes a worksite while an employee is on paid sick leave or expanded family and medical leave, the employer must pay for any leave used before the worksite closed, but the employer is not required to provide any further lave as of the date of the worksite closure. Further, if the employer closes a worksite but later reopens it, the employer is not required to provide paid sick leave and expanded family and medical leave to employees for the period that the worksite was closed.

What are the qualifying reasons for Paid Sick Leave?

  • The Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • (ii) The Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • (iii) The Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;
  • The Employee is caring for an individual who is subject to an order as described in (i) or directed as described in (ii) of this subsection;
  • (v) The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19; or
  •  The Employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor. The substantially similar condition may be defined at any point during the Effective Period, April 1, 2020, to December 31, 2020.

Under EPSLA, how much paid leave must an employer provide to a qualifying employee?

Full-time employees are entitled to a maximum of 80 hours over a two-week period and part-time employees are entitled to a number of hours equal to the number of hours that the employee normally works over a two-week period; however, the benefits are capped at $511 a day and $5,110 in the aggregate per employee for reasons (i), (ii), and (iii). If an employee is out for reasons (iv), (v), and (vi), sick leave must be paid at 2/3 the employee’s required compensation and is capped at $200/day and $2,000 in the aggregate per employee.

Which employees are eligible for the EFMLEA?

Employees who work for a covered employer and have been employed for 30 calendar days are eligible for expanded family and medical leave In contrast, to be eligible to take FMLA leave for other reasons, employees generally need to have worked for the employer for at least 12 months, have 1,250 hours of service in the twelve-month period prior to leave, and work at a location where the employer has at least 50 employees within 75 miles.

What are the qualifying reasons for expanded family and medical leave?

Employees may take family and medical leave to care for the employee’s son or daughter whose school or place of care has been closed or is unavailable due to COVID-19 reasons.

How much Emergency Family Medical Leave is available to an employee?

An employee’s eligibility for expanded family and medical leave under the Emergency FMLA Expansion Act depends on how much FMLA leave the employee has already taken during the 12-month period used by the employer for FMLA leave. Under the expanded Act, eligible employees are entitled to a total of 12 workweeks of expanded family and medical leave between April 1, 2020 and December 31, 2020.

Any leave taken pursuant to EFMLEA counts against the 12 work weeks of FMLA leave to which employees are otherwise entitled. So, if an employee has used part of their 12 weeks of FMLA, they would only be entitled to the remainder for extended family leave.

How much are employees compensated under EFMLEA?

The expanded family and medical leave is unpaid for the first two weeks, though the paid sick leave discussed above is available for that period, or employees may elect to use accrued PTO. For each day of extended family leave after the first two weeks, the employer must pay the employee two-thirds of their regular rate times the number of hours the employee would normally be scheduled to work that day, up to a maximum of $200 per day or $10,000 in total for the additional ten work weeks.

Can expanded family and medical leave be used intermittently under the FFCRA?

Yes, if the employer allows it and the employee is unable to work their normal schedule of hours, whether at the usual worksite or while teleworking, due the need to care for his/her child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 reasons,  the employer may agree that the employee can take expanded family medical leave intermittently.

Can an employee take paid sick leave intermittently under the FFCRA?

It depends on why the employee is taking paid sick leave and whether the employer agrees. An employee working at their place of work or teleworking may only take intermittent leave if they are taking paid leave to care for a child whose school or place of care is closed. In this case, the employee and employer may agree that the employee can take paid sick leave intermittently, however, the leave must be taken in full-day increments.

In order to discourage conditions that may exacerbate the spread of COVID-19, employees who take paid sick leave for any other qualifying reason cannot take leave intermittently. Once the employee begins taking paid sick leave for any qualifying reason other than caring for a child whose school or place of care is closed, the employee must continue taking paid sick leave each day until (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. 

Can an employer require employees to use other paid leave before using the EPSLA paid leave?

No. Emergency paid sick leave under this Act must be available immediately starting as of April 1, 2020 and cannot be subject to a requirement to exhaust other available leave first.

If an employer has already provided an employee paid sick leave for a qualifying reason prior to April 1, 2020, is the employee still eligible for the two weeks of paid sick leave after April 1, 2020?

Yes. The Act imposes a new leave requirement on employers that became effective on April 1, 2020.

Does an employer have to provide paid sick leave to employees who are subject to a stay-at home order if the employer does not have work for the employee?

No. If the employee would be unable to work because the worksite is closed, the employer is not required to pay an employee paid sick leave

If an employee who is subject to a quarantine or isolation order is able to telework, does the employer have to provide the employee with paid sick leave?

No. As long as an employer has work for an employee and the employer permits the employee to work from home and there are no extenuating circumstances that prevent the employee from performing that work, the employee is not entitled to paid sick leave.

What is teleworking?

An employee is able to telework if the employer has work for the employee, the employer permits the employee to work from the employee’s location, and there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.

Does the employer have to provide an employee with paid sick leave if an employee is experiencing symptoms and seeking a medical diagnosis but is still able to telework?

No. An employee who is waiting for the results of a test and is able to telework may not take paid sick leave if the employer has work for the employee to perform, the employer permits the employee to perform the work from a different location, and the employee is not exhibiting serious COVID-19 symptoms that prevent the employee from performing that work. However, if an employee is unable to telework, and is experiencing COFID-19 symptoms, regardless of the severity of the symptoms, he/she may take paid sick leave.  

Does an employer have to pay paid sick leave to an employee who has decided to self-quarantine but has not sought a medical diagnosis?

No. An employee is only eligible to receive paid sick leave under the FFCRA if they seek a medical diagnosis or if a health care provider otherwise advised the employee to self-quarantine. An employee may not unilaterally decide to self-quarantine for an illness without medical advice. Additionally, paid sick leave under the FFCRA is only applicable for an illness related to COVID-19.

Does an employer have to provide paid sick leave to an employee who is caring for an individual who is either subject to a government quarantine or isolation order or has been advised by a health care provider due to concerns related to COVID-19?

If an employee has a genuine need to care for an individual with whom the employee has a personal relationship, (i.e. an immediate family member or a roommate), and the employer has work for the employee to perform, the employer must pay the employee paid sick leave. An employee caring for an individual may not take paid sick leave if the employer does not have work for him or her to perform.

Can employees combine EPSLA and the EFMLA?

Yes. Both the EPSLA and the EFMLEA permit an employee to take paid leave when needed to care for her/her son or daughter whose school or place of care is closed due to COVID 19 reasons. When an employee qualifies for leave under both Acts, an employee may first use the two weeks of paid leave provided by the EPSLA. This will run concurrently with the first two weeks of unpaid leave under the EFMLEA.

When does an employee need to notify the employer that they need to take leave?

An employer may require the employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances. If an employee is unable to give the employer advance notice, employees who require paid sick leave or expanded family and medical leave need to provide notice as soon as practicable.

Can an employer who employs health care providers or emergency responders prevent their employees taking paid leave under EPSLA or the EFMLEA?

Yes, employers may exclude employees who are health care providers or emergency responders from entitlement to paid sick leave and expanded family and medical leave.

What employees are considered “health care providers” under FFCRA?

For the purposes of the exemption, the FFCRA defines a health care provider 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, 66 retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.  However, the Department of Labor encourages employers to be judicious when using this definition to exempt health care providers and emergency responders from the provisions of the FFCRA.

What employees are considered “emergency responders” under FFCRA?

“Emergency responders” include anyone necessary to provide transport, care, healthcare, comfort and nutrition to COVID-19 patients or others needed for the response to COVID-19. It includes military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, EMTs, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, 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. As with health care providers, these individuals are not automatically excluded from taking leave under EPSLA or EFMLEA, they are only excluded if their employer affirmatively elects to do so.

Are employees who take leave still entitled to continue their health care coverage?

Yes. Employees who take leave under either EPSLA or EFMLEA are entitled to continue their coverage under the employer’s group health plan on the same conditions as if they had not taken the leave. The employee, however, is still responsible for paying the same portion of the plan premium as they paid before.

Is an employer required to restore an employee to their position when they return from leave?

In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner than an employee would be returned to work after FMLA leave. However, an employee on leave is not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether or not they took leave.

Does the restoration provision apply to an employer who has fewer than twenty-five employees?

The restoration provision does not apply to an employer who has fewer than twenty-five employees if all four of the following conditions are met:

  • The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose child care provider was unavailable;
  • (ii) The employee’s position no longer exists due to economic or operating conditions that (a) affect employment and (b) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave;
  • The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
  • If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available, for a period of one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier

What documentation must an employee provide to support their request for paid sick leave or expanded family and medical leave under the FFCRA?

Employees are required to provide their (i) name, (ii) dates for which leave is requested, (iii) the qualifying reason for leave; and (iv) an oral or written statement that the employee is unable to work because of the qualified reason for leave.

An employee must provide additional documentation depending on the qualifying reason for leave.

For reason (i), an employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.

For reason (ii), an employee must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.

For reason (iv), an employee must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.

For reason (v), an employee must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

Failure to provide appropriate notice does not necessarily justify denial of the employee’s request. Instead, the employer should point out the deficiency and give the employee a chance to correct it.

How long is an employer required to retain all documentation relating to FFCRA?

An employer is required to retain all documentation provided by employees for four years, regardless of whether leave was granted or denied. If an Employee provided oral statements to support his/her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain this information as well. If an employer denies an employee’s request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain for four years.

Are employers required to notify employees of these new requirements?

Yes. Employers must post and keep posted a notice of the law’s requirements. Employers should post the notice in a conspicuous place where employees at a worksite may view it. Employers may also distribute the notice to employees by e-mail or post the required notice electronically on an employee information website.  For employees who are working remotely, the notice should be sent via e-mail.

The Department of Labor has made a model notice available which employers may download, free of charge. https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf

Will employers be reimbursed for costs associated with the FFCRA?

Yes. Covered private employers can be reimbursed through refundable tax credits for amounts paid to employees for paid sick leave wages, expanded family and medical leave wages, and for allocable costs to maintain health care coverage under any group health plan while the employee is on FFCRA leave. 

For information on tax credits, see

https://www.irs.gov/forms-pubs/about-form-7200
https://www.irs.gov/pub/irs-drop/n-20-21.pdf

What are the penalties for failure to comply with the FFCRA?

Employers who fail to provide the FFCRA’s paid sick time violate the Fair Labor Standards Act’s minimum wage mandate. For purposes of the EFMLEA, employers are subject to normal FMLA enforcement procedures. Employers are prohibited from discharging, disciplining, or discriminating against employees because they took or applied for protected leave.