The DOL has been working overtime attempting to clarify and answer questions on various aspects of the Families First Coronavirus Response Act (FFCRA). As we reported last week, the DOL issued its “Employee Rights” poster, along with initial guidance in the form of “Questions and Answers.” On Thursday night (March 26) and then again on Saturday evening (March 28), the DOL added answers to 45 more questions, attempting to clarify these laws that go into effect on April 1. Click here to access the updated “Questions and Answers.”

Here are the highlights of what we know:

What records must an employer keep for employees who take paid sick leave?

  • Employees must provide appropriate documentation supporting a request for paid leave. This documentation must include the following: 1) the reason for the leave, 2) a statement from the employee that he/she is unable to work (including telework) for that reason, 3) the dates of requested leave, and 4) documentation supporting the reason for leave.
  • For the last requirement, this can include a copy of the quarantine or isolation order, or written documentation by a health care provider advising of the need to self-quarantine (either for the employee or someone under the employee’s care). If the reason for leave relates to a school closure or unavailability of childcare due to COVID-19, a notice or email from the school or childcare provider is sufficient.
  • Tax Credits – If you intend to claim a tax credit for the paid leave under the FFCRA, you must retain the documentation described above and comply with applicable IRS procedures for claiming the tax credit. Be aware that the IRS may require additional substantiation to support the tax credit. You should consult with your accountant or tax attorney for more information.

Can an employee take paid sick leave on an intermittent basis?

  • It largely depends whether telework (remote work) is an option.
  • When Telework is an Option – An employee can take paid sick leave on an intermittent basis if the employer agrees to the arrangement. There is no defined increment or minimum period of time that must be used. Rather, it is up to the employee and employer to agree. For example:
    • An employee who teleworks is able to work from 9:00 am to 3:00 pm while his/her child is in virtual school, but cannot work after 3:00 pm because he/she must care for the child. As long as the employer agrees, the employee may take intermittent paid leave from 3:00 pm to 5:00 pm.
  • When Telework is NOT an Option – Leave may not be used intermittently if it is because: (i) employee is subject to a quarantine or isolation order; (ii) employee is advised to self-quarantine due to COVID-19 concerns; (iii) employee has COVID-19 symptoms; (iv) employee is caring for an individual that falls under (i)-(ii); or (v) employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services. Paid leave for these reasons must be taken in full-day increments and must be continuous until the employee has exhausted paid leave or the employee no longer has a qualifying reason for paid leave (i.e., the period of quarantine ends, etc.). This makes sense. You do not want an employee who falls under these categories in your worksite.
  • Only Exception to the Telework Requirement – School Closure or Child Care Provider Unavailable – If the reason for leave is due to lack of childcare because of COVID-19, then leave can be taken intermittently regardless of whether the employee teleworks. Once again, the only requirement is that the employer agree to the arrangement. For example:
    • An employee can work onsite Mondays, Wednesdays and Fridays, but cannot work on Tuesdays and Thursdays because of child care issues relating to COVID-19. That employee may use paid leave to cover hours normally worked on Tuesdays and Thursdays if the employer agrees to this arrangement.

If an employee is able to telework his/her regular number of hours but at a different schedule, is the employee eligible for paid leave?

  • Not if the employer agrees to the modified schedule. For example:
    • A full-time employee (who normally works 8 hours per day) is able to commence teleworking at 6:00 am and ends the day at 2:00 pm, resulting in an 8-hour workday. This employee would not be eligible for paid leave if the employer agrees to this revised schedule.

What about employees who were terminated because of lack of business before or after April 1? Can they be eligible for paid leave?

  • No. Employees terminated or furloughed because of lack of work or business closures are not eligible for paid leave. The same applies to employees whose hours are reduced because of lack of work. These employees may be eligible for unemployment insurance benefits. Employees cannot receive both paid leave and unemployment benefits.
  • If an employer lays off workers or closes a business while an employee is on paid leave, the employee may only receive paid leave through the day the business closes or the employee would have been laid off due to lack of business. Again, lack of work or government closures of certain businesses do not trigger any obligations to paid leave.
  • If an employer rehires or recalls employees in the future, then the rehired/recalled employees are only eligible for paid leave going forward if they have a qualifying reason for leave.

Can an employer require employees to supplement FFCRA paid leave with employer sponsored paid leave benefits?

  • No. Employers cannot require employees to use Company-provided paid time off (such as paid vacation, personal or sick leave) when on paid leave under the various components of the FFCRA. Paid leave under the FFCRA is intended to supplement whatever paid time off employees normally receive under the employer’s standard policies. The two cannot run concurrently unless the employee agrees.
  • An employee may choose to use existing paid time off to supplement paid sick leave under the FFCRA; however, the employer may not require employees to do so. For example, where an employee is receiving 2/3 of paid leave, the employee may choose to supplement the wages with vacation time to make up the difference between the paid leave and their normal earnings. However, both the employer and the employee must agree to this arrangement.
  • If an employer allows an employee to supplement mandated paid leave with Company-provided paid time off, the employer will not receive a tax credit for any amounts above the limits for paid leave set forth by the FFCRA.

Are there circumstances when paid leave must be given to an employee who cares for an adult child?

  • Yes. If the employee’s adult child: 1) has a mental or physical disability, and 2) is incapable of self-care because of that disability. An employee unable to telework because of a school closure or the unavailability of childcare for an adult child who falls under this definition is eligible for paid leave.

What happens when an employee returns from paid leave?

  • Just like traditional FMLA, the FFCRA provides for job protection for an employee returning from leave. An employer must return the employee to the same (or nearly equivalent) job after the expiration of their paid leave. But there are important exceptions:
    • If the position was eliminated or the employee would have been laid off for some legitimate business reasons unrelated to the paid leave, then there is no right to re-employment.
    • There is no job protection for “key” employees as defined in the FMLA.
    • If the employer has fewer than 25 employees and leave was taken to care for a child whose school was closed or child care was unavailable, there is no guarantee of reemployment if an employer can prove all of the following:
      • The employee’s position was eliminated due to economic reasons (even if the economic reasons were due to the COVID-19 pandemic);
      • 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 when an equivalent position becomes available for one year from the date when the employee is able to return to work following paid leave.
  • The FFCRA also contains anti-discrimination and anti-retaliation provisions similar to those found in the FMLA.

Does the Emergency Family and Medical Leave Act (E-FMLA) give employees more than 12 weeks of leave?  What about the Emergency Paid Sick Leave Act (EPSLA)?

  • Under the E-FMLA, the answer is “No.” If an employee has fully exhausted the 12 weeks of FMLA leave prior to April 1, the employee is not eligible for any additional paid leave under the E-FMLA. Conversely, if the employee has used 2 weeks of FMLA prior to April 1, then the employee is eligible for 10 weeks of paid leave under the E-FMLA.
  • The E-FMLA relies on the same 12-month period used by the employer for calculating all other forms of leave under the FMLA.
  • The EPSLA is different. The paid leave (i.e., 80 hours for full-time employees) provided by the EPSLA is in addition to the 12 weeks provided for by the FMLA. If an employee exhausted the 12 weeks of FMLA prior to April 1, the employee would still be eligible for paid leave under the EPSLA if one of the qualifying reasons is met. Likewise, if an employee takes EPSLA because he/she is experiencing symptoms of COVID-19, the employee may later take up to 12 weeks of E-FMLA to care for a child because of a school closure or unavailability of childcare if the employee has not otherwise used his/her 12 weeks of FMLA.
    • ONE BIG EXCEPTION – If an employee takes paid leave under EPSLA for a school closure/childcare reasons concurrently with the first two weeks of E-FMLA (which are unpaid), then those paid hours under EPSLA will count towards the employee’s 12 weeks of leave. No double dipping allowed in this scenario.

Employers may exclude health care providers from paid leave under the FFCRA. Who does that include?

  • The definition is broad. A health care provider is “anyone employed” at any doctor’s office, hospital, health care center, clinic, medical school, nursing facility, retirement facility, nursing home, home health care provider, laboratory, pharmacy, and the list goes on. It also includes anyone employed by an entity that produces medical products, or is otherwise involved in making COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments.
  • Based on this broad definition, it appears to include non-medically trained personnel, such as receptionists, billing clerks, and other administrative personnel.
  • Despite the broad definition, the DOL encourages employers to apply this exemption narrowly.

What about the Small Business Exemption? How does that work?

  • Certain small business, with fewer than 50 employees, are exempted from the paid leave requirements only if providing paid leave would jeopardize the viability of the business.
  • To fall under this exemption:
    • An employer must employ fewer than 50 employees;
    • The leave requested by the employee must be for a school closure or unavailability of childcare due to COVID-19;
    • An authorized officer of the Company must determine that either:
      • The cost of providing paid leave would exceed revenues and cause the business to cease operating at a minimal capacity;
      • The employee requesting leave has specialized skills, knowledge of the business or responsibilities such that their absence would cause risk to the financial health or operational capabilities of the business; or
      • The Company does not have sufficient workers to perform the job duties of the employee requesting leave and this work is necessary for the business to operate at a minimal capacity.
  • The DOL has made it clear that the Small Business Exception only applies to paid leave for a school closure or unavailability of childcare. If an employee requests paid leave for any of the other qualifying reasons (such as the employee is told to self-quarantine by a doctor or is experiencing symptoms of COVID-19), the employer must comply with the requirements of the Emergency Paid Sick Leave Act regardless of the financial hardship it may cause the employer. Remember, that paid leave comes with tax credits that are intended to offset the cost of the leave.

Employers should contact their employment counsel about updating their existing FMLA and other policies to address the requirements of the FFRCA.