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DOL Provides New Guidance, and Some Changed Guidance, on FFCRA
Mar 30, 2020

DOL Provides New Guidance, and Some Changed Guidance, on FFCRA

Topics: COVID-19

Today, the Department of Labor (DOL) issued a third round of guidance that answers more of the outstanding questions on the FFCRA’s paid sick leave and paid family leave provisions.  Today’s guidance addresses the small employer exemption, the exemption for healthcare providers and emergency responders, maximum leave entitlement under the FMLA, and various additional matters concerning the rights of public sector employees, reinstatement rights, definitions of terms used in the Act, and remedies for non-compliance.  Some of these questions and answers are set forth below (not necessarily verbatim), but are also available here.  Perhaps most significantly, the updated guidance sheds more light on the small employer exemption.  First, the guidance limits the small employer exemption by instructing that small employers may claim exemption ONLY from the need to provide paid sick or family leave for an employee whose child’s school or child care is closed due to Covid-19.  Small employers cannot claim exemption from the Act’s requirement to provide paid sick leave for other covered reasons.  Second, the guidance seems to suggest (though this is unclear) that small employers can self-exempt from the school closure-related paid leave if certain requirements are met.  This may change upon further guidance being issued, however.  Also of significance, the updated guidance CHANGES prior published guidance on the documentation that employers may require to support use of paid leave under the FFCRA.  Unfortunately, the newly revised guidance refers employers to the IRS and directs them to obtain documentation required by the IRS to process payroll tax credits.  Inconveniently, the IRS has not published this information yet.  Stay tuned.  Finally, please note that the DOL also published a Spanish version of the model FFCRA notice, available here.

Q.  When does the small business exemption apply to exclude a small business from the provisions of the FFCRA?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family 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’s 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.

Q.  If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family leave?

A small business is exempt from certain paid sick leave and expanded family leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in the question above is satisfied.

Q.  Assuming I am a covered employer, which of my employees are eligible for paid sick leave and expanded family and medical leave?

An “employee” has the same meaning as the term has under the Fair Labor Standards Act, thus all of your U.S. (including Territorial) employees who meet this definition are eligible including full-time and part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency.  However, if you employ a health care provider or an emergency responder you are not required to pay such employee paid sick leave or expanded family and medical leave on a case-by-case basis. And certain small businesses may exempt employees if the leave would jeopardize the company’s viability as a going concern.

There is one difference regarding an employee’s eligibility for paid sick leave versus expanded family and medical leave. While your employee is eligible for paid sick leave regardless of length of employment, your employee must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. For example, if your employee requests expanded family and medical leave on April 10, 2020, he or she must have been your employee since March 11, 2020.

Q.  Who is a “son or daughter” for purposes of the FFCRA’s paid leave provisions?

Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child.  A “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Q.  Do I have a right to return to work if I am taking paid sick leave or expanded family and medical leave under the FFCRA?

Generally, yes. In light of Congressional direction to interpret requirements among the Acts consistently, WHD clarifies that the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.

In most instances, you are entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave. Thus, your employer is prohibited from firing, disciplining, or otherwise discriminating against you because you take paid sick leave or expanded family and medical leave. Nor can your employer fire, discipline, or otherwise discriminate against you because you filed any type of complaint or proceeding relating to these Acts, or have or intend to testify in any such proceeding.

However, you are not protected from employment actions, such as layoffs, that would have affected you regardless of whether you took leave. This means your employer can lay you off for legitimate business reasons, such as the closure of your worksite. Your employer must be able to demonstrate that you would have been laid off even if you had not taken leave.

Your employer may also refuse to return you to work in your same position if you are a highly compensated “key” employee as defined under the FMLA, or if your employer has fewer than 25 employees, and you took leave to care for your own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist: 

  • your position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of your leave;
  • your employer made reasonable efforts to restore you to the same or an equivalent position;
  • your employer makes reasonable efforts to contact you if an equivalent position becomes available; and
  • your employer continues to make reasonable efforts to contact you for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.

Q.  Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my leave under the FMLA?

If you are an eligible employee, you are entitled to paid sick leave under the FFCRA regardless of how much leave you have taken under the FMLA.

However, if your employer was covered by the FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period that your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If you have taken some, but not all, 12 workweeks of your leave under FMLA during the current 12-month period determined by your employer, you may take the remaining portion of leave available. If you have already taken 12 workweeks of FMLA leave during this 12-month period, you may not take additional expanded family and medical leave. 

For example, assume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.

If your employer only becomes covered under the FMLA on April 1, 2020, this analysis does not apply.

Q.  May I take leave under the FMLA over the next 12 months if I used some or all of my expanded family and medical leave under the FFCRA?

It depends. You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the expanded family leave for a child’s school closure provided under the FFCRA. If you take some, but not all 12, workweeks of your expanded family leave by December 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition or other normally covered FMLA reason, as long as the total time taken does not exceed 12 workweeks in the 12-month period.  Please note that expanded family leave is available only until December 31, 2020; after that, you may only take FMLA leave.

For example, assume you take four weeks of expanded family leave in April 2020 to care for your child whose school is closed due to a COVID-19 related reason. These four weeks count against your entitlement to 12 weeks of FMLA leave in a 12-month period. If you are eligible for preexisting FMLA leave and need to take such leave in August 2020 because you need surgery, you would be entitled to take up to eight weeks of FMLA leave.

However, you are entitled to paid sick leave under the FFCRA regardless of how much leave you have 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.  But please note that if you take paid sick leave concurrently with the first two weeks of expanded family leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.

Q.  What records do I need to keep when my employee takes paid sick leave or expanded family leave under the FFCRA?

Private sector employers that provide paid sick leave and expanded family leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

If one of your employees takes expanded family leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been 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 child care provider. 

Q.  What documents do I need to give my employer to get paid sick leave or expanded family leave under the FFCRA?

You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information. 

Your employer may also require you to provide additional documentation in support of your expanded family leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

Q.  If I take paid sick leave under the FFCRA, does that count against other types of paid sick leave to which I am entitled under State or local law, or my employer’s policy?

No. Paid sick leave under the FFCRA is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or your employer’s existing company policy.

Q.  How does the “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar” language in the FMLA definition of “employer” work under the expanded FMLA provisions of the FFCRA?

The language about counting employees over calendar workweeks is only in the FMLA’s definition for employer. This language does not apply to the expanded family leave under the FFCRA. Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family leave.

Q.  I’ve elected to take paid sick leave and I am currently in a waiting period for my employer’s health coverage. If I am absent from work on paid sick leave during the waiting period, will my health coverage still take effect after I complete the waiting period on the same day that the coverage would otherwise take effect?

Yes. If you are on employer-provided group health coverage, you are entitled to group health coverage during your paid sick leave on the same terms as if you continued to work. Therefore, the requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if you continued to work, including that the days you are on paid sick leave count towards completion of the waiting period. If, under the terms of the plan, an individual can elect coverage that becomes effective after completing the waiting period, the health coverage must take effect once the waiting period is complete. 

Q.  Who is a “health care provider” 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?

The term “health care provider,” as 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.

Q.  Who is a “health care provider” who may be excluded by their employer from the FFCRA’s paid sick leave and/or expanded family leave provisions?

For the purposes of employees who may be exempted by their employer from the paid leave provisions of 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. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Q.  Who is an emergency responder who may be excluded by their employer from the FFCRA's paid sick leave and/or expanded family leave provisions?

For the purposes of employees who may be excluded by their employer from the paid sick leave and expanded family leave provisions of the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Q.  I am a public sector employee.  May I take paid sick leave under the paid sick leave provisions of the FFCRA?

Generally, yes. You are entitled to paid sick leave if you work for a public agency or other unit of government, with the exceptions below. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of the United States, a State, the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar government entity subject to the exceptions below. The Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. Government Executive Branch employees from taking certain kinds of paid sick leave. If you are a Federal employee, the Department encourages you to seek guidance from your respective employers as to your eligibility to take paid sick leave.

Further, health care providers and emergency responders may be excluded by their employer from being able to take paid sick leave under the Act. These coverage limits also apply to public-sector health care providers and emergency responders.

Q.  I am a public sector employee. May I take paid family leave under the expanded family leave provisions of the FFCRA?

It depends. In general, you are entitled to expanded family leave if you are an employee of a non-federal public agency. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of a State, the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar entity.

But if you are a Federal employee, you likely are not entitled to expanded family and medical leave. The Act only amended Title I of the FMLA; most Federal employees are covered instead by Title II of the FMLA. As a result, only some Federal employees are covered, and the vast majority are not. In addition, the Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. Government Executive Branch employees with respect to expanded and family medical leave. If you are a Federal employee, the Department encourages you to seek guidance from your respective employers as to your eligibility to take expanded family and medical leave.

Further, health care providers and emergency responders may be excluded by their employer from being able to take expanded family leave under the Act. These coverage limits also apply to public-sector health care providers and emergency responders.

We will keep you posted as further guidance is published by the various federal agencies.

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