March 30, 2020
Late last week and over the weekend, the DOL issued additional rounds of guidance on the Families First Coronavirus Response Act (“FFCRA”) in the form of additional Frequently Asked Questions, which can be found here. The first round of FAQs, which was issued on Tuesday, March 24th, encompasses FAQ #s 1-14, and our prior Alert on those FAQs can be accessed here.
The next two sets of FAQs are #s 15-37 and #s 38-59. In this new guidance, the DOL finally addresses some previously-unanswered issues about how employers must comply with the FFCRA, including required documentation, telework, intermittent leave, furloughs and layoffs, supplementing with PTO, exceptions/exemptions, total leave availability, and public employees. For purposes of this alert, the Emergency Paid Sick Leave Act shall be referred to as “EPSL,” and the Emergency Family and Medical Leave Expansion Act will be referred to “FMLA+.”
The following are some key takeaways and highlights:
Required Documentation: The DOL clarifies that employers should obtain and retain appropriate documentation from employees seeking leave in order to substantiate the employer’s entitlement to the refundable tax credits. Employers may require employees to provide documentation to support their need for emergency paid sick leave or emergency paid family leave. However, given the current inundation to the healthcare system, it may not always be feasible to obtain documentation from a health care provider, specifically. We recommend that employees who state they are unable to get the appropriate documentation contact Human Resources.
Also, according to guidance released late last week—which has since been retracted—employers should require documentation from employees that demonstrates the reason for their leave, a statement that the employee is unable to work (including telework) for that reason, and the dates for which leave is requested. Although the DOL has backed off this documentation requirement, it is still a best practice for employers to request such documentation. Therefore, we are recommending that employers provide a requesting employee with a simple form to fill out with this information. Please contact a member of the McGrath North Labor and Employment group for assistance in drafting such form(s).
In addition, employers should refer to the instructions and forms issued by the IRS—when available—for information on how to claim a tax credit, including any necessary substantiating documentation.
Telework: As we know, employees are only entitled to emergency paid leave under the FFCRA if they are unable to work, including telework. It is still a bit unclear exactly who gets to decide whether the employee is, in fact, able to work remotely. However, the DOL appears to attempt to encourage employers and employees to work together to find a way for the employee to telework. FAQ #18 states, “If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.” Therefore, if the employer provides the employee with the ability to work remotely, we recommend placing the burden on the employee to show why they are unable to do so. Of course, if the employee is actually ill due to COVID-19, that could certainly prevent the employee from being able to telework.
Leave Increments: The DOL clarifies that emergency leave under the FFCRA generally must be taken in full-day increments. However, employers are free to agree to other increments as the DOL encourages flexibility to make telework possible.
Once the employee begins taking paid leave under the FFCRA, the employee must continue to take paid leave until either: (1) the employee uses the full amount of available leave; or (2) the employee no longer has a qualifying reason for taking paid leave under the FFCRA.
Intermittent Leave: In short, the FFCRA does not require employers to allow employees to take emergency paid sick or emergency paid family leave intermittently. Rather, employees are only allowed to take COVID-19 related leave intermittently if the employer agrees to such an arrangement. Again, the DOL is encouraging employers and employees to work together to achieve a flexible arrangement.
Furloughs and Layoffs: The DOL has confirmed that paid leave under the FFCRA is not available to an employee who has been furloughed, temporarily laid off, permanently laid off, or had their work hours reduced. This is true regardless of whether the employee was furloughed or laid off before or after the law’s effective date of April 1st. This also appears to be true if the workplace is closed due to a “shelter in place” or similar order pursuant to federal, state, or local law.
Again—in short—employees who are furloughed or laid off are not entitled to paid leave under the FFCRA. However, it is important to remember that discrimination and retaliation for seeking benefits under the FFCRA are strictly prohibited; therefore, an employer may not furlough or lay off an employee because they have requested leave under the FFCRA.
Supplementing Paid Leave Under the FFCRA: The FFCRA does not require employers to allow employees to supplement their two-thirds payments under the FFCRA with other accrued paid leave (such as PTO or vacation). Employers likewise cannot require employees to do so. Rather, employees may only supplement their two-thirds payments if both the employer and the employee agree to such an arrangement.
Group Health Benefits: Generally, employees are entitled to continued group health coverage during paid leave under the FFCRA.
Son or Daughter: The DOL has continued to use the definition of “son or daughter” which is set forth in the FMLA. More specifically, it will include the employee’s own child, whether biological, adopted, foster child, stepchild, a legal ward or a child for whom the employee has day-to-day responsibilities to care for or financially support a child. It also includes an adult son or daughter (18 years of age or older) who has a mental or physical disability and also is incapable of self-care because of that disability.
Reinstatement – Small Businesses: Although the employer generally is required to reinstate employees upon return from EPSL or FMLA+, the new FAQs establish a limited exception if the employer has less than 25 employees. If, in that instance, an employee took leave to care for their son or daughter whose school or place of care was closed, or whose childcare provider was unavailable, it would not need to reinstate the employee from leave if all 4 of the following hardship conditions were found to exist:
- The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
- The employer made reasonable efforts to restore the employee to the same or equivalent position;
- The employer made reasonable efforts to contact the employee if an equivalent position becomes available; and
- The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 ended or the date 12 weeks after the leave began, whichever is earlier.
Total Leave Availability: Interestingly, in FAQ #44, the DOL clarified that although all covered employees would be entitled to paid sick leave under EPSL their eligibility for FMLA+ will be reduced by the number of workweeks of leave under the FMLA which were taken prior to April 1, 2020 during the 12-month period that the employer uses for FMLA leave. If the employee has taken some, but not all, of the 12 workweeks of leave under the FMLA, the employee may seek the remaining portion of that 12-week entitlement under FMLA+. If the employee has already taken 12 workweeks of FMLA leave during the 12-month period used by the employer, the employee may not take any additional leave under FMLA+. If the employer only becomes covered under the FMLA on April 1, 2020, because of the provisions of the FFCRA, this analysis would not apply.
If the employee takes some, but not all 12, workweeks of the FMLA+ leave by December 31, 2020, when the FFCRA ends, the employee may take the remaining portion of the FMLA leave for a “serious health condition” under the “old” FMLA as long as the total time taken does not exceed 12 weeks in a 12-month period.
Again, this limitation on FMLA and FMLA+ leave does not apply to the EPSL paid sick leave the employee is entitled to. At the same time, if the employee has chosen not to use EPSL for the first two unpaid weeks of FMLA+, they could add it to the end of their FMLA+ leave for a total of 14 weeks of leave.
FMLA+ Leave: The new guidance reiterates that FMLA+ leave applies only when the employee is on leave to care for their child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons. The EPSL may be taken for a number of other reasons.
The DOL clarified that while the FMLA+ does not distinguish between full and part time employees, the number of hours an employee normally works each week will affect the amount of hours of pay the employee is eligible to receive.
Public Sector Employee Eligibility: Public employees generally include those who work for the government of the U.S., a state, the District of Columbia, a territory or possession of the United States, a city, municipality, a township, county, parish or similar government entity. The Office of Management and Budget has the authority to exclude certain categories of U.S. Government Executive Branch employees. Public sector employees would generally be entitled to both FMLA+ leave and EPSL paid sick leave. However, federal employees would likely not be entitled to FMLA+ leave.
Small Business Exemption: The DOL made it clear that an employer, including a religious or non-profit organization, with fewer than 50 employees would be exempt from providing either paid sick leave due to school or place of care closure or childcare provider unavailability for COVID-19 related reasons and expanded an FMLA+ leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A determination of whether the exception would apply would require an authorized officer of the business to demonstrate that:
- Providing ESPL or FMLA+ 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 employer or employees requesting EPSL or FMLA+ 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 employer or employee requesting EPSL or FMLA+, and those labor or services are needed for the small business to operate at a minimal capacity.
While these additional FAQs provide some much needed guidance under the new emergency laws, there are still a number of questions and uncertainties remaining. We will continue to monitor this rapidly-developing situation and will keep our clients apprised as additional guidance and regulations come to light.
If you have any questions about this alert, please contact the Labor, Employment and Benefits members of our COVID-19 Response Team indentified below.
Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.
For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.