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Questions Remain After DOL’s First Round of FFCRA Guidance
Mar. 26 2020

Questions Remain After DOL’s First Round of FFCRA Guidance

Topics: COVID-19, Employee Leave, New Laws & Legislation

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law.  Details about that law were discussed on this blog.  On March 24, 2020, the DOL issued its first round of guidance on the FFCRA, also discussed on our blog.  Despite the DOL’s guidance, employer questions remain.

How do small employers request an exemption? 

Employers with less than 50 employees can request an exemption from the Secretary of Labor from the requirement of providing paid time off for child care disruption and expanded family and medical leave if providing it would jeopardize the viability of the business as a going concern.  Such employers would have to affirmatively elect this small business exemption, and must document why the business qualifies for the exemption.  Unfortunately, small employers do not yet know how to request the exemption or what information must be provided.  It is also unclear how long it will take for a determination on the request, or whether the employer is required to pay the employee during the time period the exemption request is pending.  The DOL is expected to provide additional guidance on how to elect this exemption in forthcoming regulations soon.

How to treat an employee who previously took or exhausted FMLA leave prior to the passage of the FFCRA? 

The FFCRA temporarily adds new reasons for FMLA leave to be taken, but it does not appear to add an entirely new bucket of FMLA leave if prior FMLA leave was taken and/or exhausted.  Thus, an employee who exhausted his/her FMLA time due to a prior FMLA leave (during the qualifying period defined by the employer) would not have any new FMLA time under the FFCRA.  However, the employee would still be eligible for ten days of Emergency Paid Sick Leave for qualifying events under the FFCRA, as well as any other available leave under state and local laws or company policies.  Importantly, leave taken under the expanded FMLA provision of the FFCRA cannot run concurrently with an employee’s leave entitlement under the California Family Rights Act (CFRA), because leave to care for a child whose school is closed due to Covid-19 is not a covered reason for leave under the CFRA.    

Can an employee make up any shortfall in pay with employer-provided paid leave? 

The emergency paid sick leave available to employees under the FFCRA is in addition to any paid leave already provided by state or local law and the employer’s policies.  Thus, an employee is entitled to paid sick leave for covered COVID-19 reasons without first exhausting any other paid leave benefit, and amounts paid pursuant to the FFCRA do not diminish an employee’s sick leave or PTO banks.  However, because the FFCRA has a cap on the amount of daily and total pay an employee receives, if the employee would receive a higher pay amount for regular sick pay, can the employee make up the difference in pay between the FFCRA and sick pay by using additional sick pay hours?  While there is no express guidance on this question, there is no prohibition in the FFCRA on permitting an employee to make up for any shortfall through an employer-provided program, subject to the terms of the employer’s sick pay or PTO policy.  However, the employer cannot require the use of paid sick leave during the time period covered by the FFCRA, and it should be left to the employee to request this. 

What is covered under the “catch-all” category for FFCRA? 

Under the FFCRA, the employee can take leave if “the employee is experiencing a substantially similar condition to COVID-19 as has been identified by the Secretary of Health and Human Services.”  There is not yet any guidance on what this means, as the Secretary of Health and Human Services has not yet identified any conditions similar to COVID-19.  Thus, employers are not yet required to grant an employee leave under this provision until “substantially similar” conditions have been identified by the Secretary.

Can employees take FFCRA leave to care for non-family members who are quarantined? 

The FFCRA states that leave may be taken to care for an “individual” who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.  That type of leave does not appear to be limited to a family member.  However, the portion of the FFCRA that discusses the pay for this type of leave uses the language to “care for family members.”  Until this issue is clarified by the DOL, it would be risky to deny leave needed to care for non-family members who are quarantined.

What about employees who have health conditions that make them high risk but who do not fall within one of the defined categories?  If an employee has been advised by a medical provider to self-quarantine, the employee is entitled to emergency paid sick leave under the FFCRA.  Once the paid leave has expired, the employee may qualify for additional protected FMLA/CFRA leave only if the employee has a “serious health condition” as defined by the FMLA/CFRA that renders him unable to work.  Please keep in mind that once any job-protected leave under the FMLA/CFRA has expired, if the employee is suffering from a disability as defined by the ADA (and/or the California Fair Employment and Housing Act if the employee is in California), the employer should consider whether additional leave time would be a reasonable accommodation under those laws.  The EEOC has also updated its Pandemic Preparedness in the Workplace ADA Guidance in light of COVID-19.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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