DOL Provides Additional Information About the Families First Coronavirus Response Act
Effective April 1, 2020, the federal Families First Coronavirus Response Act (FFCRA) will require private employers with less than 500 employees, and certain public employers, to provide covered employees with emergency sick and family leave. Late last week, the U.S. Department of Labor (DOL) released an expanded Question and Answer document providing further clarification and answering some previously unanswered questions about the rights and responsibilities of both employers and employees under FFCRA. See MEA’s previous alert regarding the initial Question and Answer document.
The latest Q&A document advises that employers may collect documentation in support of leave “as specified in applicable IRS forms, instructions, and information.” While it appears that such forms may be forthcoming, to date, no such forms have been released. The DOL explains that employers can require employees to support leave requests with appropriate documentation supporting the absence. According to the DOL, for employees using leave to care for a child, examples of supporting documentation include a notice posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider. The DOL recommends that employers keep this documentation if they will seek tax credits for providing paid leave.
What it Means to be “Unable” to Work or Telework
The DOL provides a series of questions and answers addressing what it means to be “unable” to work or telework in the context of eligibility for FFCRA benefits. The DOL explains that being “unable” to work or telework means that an employer has work available, but one of the specified paid reasons for leave under the FFCRA prevents the employee from being able to work. The agency states that employers can adjust typical work schedules to accommodate remote workers. As long as employees are able to work these scheduled hours, those workers would not be eligible for leave under FFCRA. But, if a worker is unable to work remotely or otherwise perform work during the required hours because of one of the qualifying reasons, the employee would be entitled to take FFCRA leave. The DOL encourages employers and employees to work together to achieve maximum flexibility in an effort to keep employees working.
Intermittent Leave (in most cases) with Employer Approval
The DOL provides generally that employees and employers may agree to intermittent and incremental use FFCRA leave of emergency paid sick leave (EPSL) and emergency Family and Medical Leave benefits (EFMLA) but distinguishes between situations where an employee is teleworking or working onsite.
For employees who are teleworking, whether taking time off under EPSL or EFMLA, the employer and employee may agree to intermittent leave for any of the covered reasons. But for employees who are working on the employer’s premises, intermittent EPSL is permitted – with employer approval – only for employees who are taking leave for school closures or childcare unavailability. Employees taking EPSL for one of the other five reasons under the FFCRA must take such leave in full-day increments and must continue to take the leave each day until the worker either: (1) uses the full amount of paid sick leave; or (2) no longer has a qualifying reason for taking paid sick leave. This limit is imposed because the law is intended to prevent employees who may be ill or caring for those who are ill from spreading the virus to others.
No Leave Benefits for Employees Who are Not Working
The DOL clarifies that, if an employee is not working, either because the worksite is closed or because the employee has been laid off or furloughed, the employees is not eligible for FFCRA leave benefits. This is true whether the worksite closes for lack of business or due to a federal, state or local government directive. In other words, it appears that stay at home, shelter in place and business closure orders likely do not support a request for EPSL. In most such cases, however, the employee may seek unemployment benefits.
Interplay with Non-Emergency FMLA
An otherwise eligible employee is entitled to paid sick leave under the EPSLA regardless of how much leave the employee may have taken under the FMLA. However, an employee may take a total of 12 workweeks for FMLA or EFMLA during a 12-month period. If an employee has taken some, but not all, 12 workweeks of leave under FMLA during the current 12-month period determined by the employer, the employee may take the remaining portion of leave available for EFMLA. If an employee already has taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take any EFMLA. Similarly, any leave taken under EFMLA will count towards an employee’s other FMLA entitlement going forward. Employers and employees should keep in mind that EFMLA is available only until December 31, 2020. After that, employees may take only take FMLA leave.
Paid Sick Leave Under EPSLA Does Not Affect Other Paid Sick Leave
Paid sick leave under the EPSLA is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement or an employer’s existing company policy. An employee may choose to use existing paid vacation, personal, medical, or sick leave from an employer’s paid leave policy to supplement the amount the employee receives from EPSL or EFMLA, up to the employee’s normal earnings. Note, however, that an employer is not entitled to a tax credit for any payments that are not required to be made or exceeds the limits set forth under FFRCA.
Relief for Small Businesses?
The expanded Q&A provides further (but not complete) clarity on the relief that may be available for employers with less than 50 employees. In particular, the DOL advises that such an employer, including a religious or nonprofit organization, (small business) is exempt from providing: (a) EPSL due to school or place of care closures or child care provider unavailability for COVID-19 related reasons; and (b) EFMLA due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when 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:
- 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;
- 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
- 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 at a minimal capacity.
Stay tuned for (hopefully) more information on this subject.
Amy McAndrew, Esquire
Director of Member Legal Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.