Guidance on Major Issues Under FFCRA

DOL’s wage and hour division answers 50+ questions
On March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) first published guidance on the Families First Coronavirus Response Act (FFCRA). The FFCRA applies to businesses with fewer than 500 employees and provides employees with paid leave, either for the employee’s own health needs or to care for family members. In advance of the FFCRA’s April 1, 2020 effective date, WHD supplemented information contained in the Q&A portion of its on-line guidance answering some of the questions businesses have been asking ever since the FFCRA was passed on March 18th. The WHD now answers 59 separate questions, all of which can be accessed on its website here. Some of the more noteworthy pieces of information are as follows:

Intermittent leave while teleworking
If an employer allows its employee to work remotely and the employee is unable to work a normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act, or to care for a child whose school or place of care is closed, paid sick leave and/or expanded family medical leave may be taken intermittently while working remotely in any increment to which the parties agree. (Note that if the employee is not working remotely, the paid leave cannot be taken intermittently unless the leave is necessary for childcare, and only then with the employer’s permission.)

No paid leave if employees furloughed prior to April 1
If a business has sent its employees home because of a mandated closure or lack of business, employees will not receive paid sick leave or expanded family and medical leave, but may be eligible for unemployment compensation benefits.

No paid leave if employees furloughed after April 1 but before leave is needed
No paid leave is available, because no work is available, but such employees may be eligible for unemployment compensation benefits.

No paid leave once business closes
Once a business closes, even if the employee is already out on paid emergency sick leave or extended family medical leave, the employee is no longer entitled to paid leave but may be entitled to unemployment compensation benefits. The employer must pay for any paid sick leave or expanded family and medical leave taken before the employer closed.

Paid leave for employees who have already used 12 weeks of FMLA leave
An eligible employee is entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much time previously taken under the FMLA. However, employees are not entitled to additional FMLA leave if they have already exhausted their available FMLA leave, meaning the extended FMLA leave under the FFCRA does not provide a worker with up to 24 weeks of leave. Similarly, if an employee uses 12 weeks of extended FMLA leave to care for a child whose school is closed, that employee cannot take additional FMLA leave in the same 12 month period. The employee would be entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave is taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap.

The small business exemption
An employer with fewer than 50 employees is exempt from providing extended family medical leave and/or paid sick leave 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:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’ 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 at a minimal capacity.

Who is a “health care provider”
It depends whether it is 1) for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, or 2) for purposes of determining whether the health care provider can be excluded by the employer for paid leave.

The term “health care provider” is used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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.

Bear in mind that the guidance provided by the WHD is just that – guidance. It is the WHD’s interpretation of different provisions of the FFCRA, and no formal regulations have yet to be issued. If you have any doubt about your rights and obligations under the FFRCA, please email or call Ethan O’Shea at (215) 616-1521 or EOShea@HRMML.com.