U.S. Department of Labor Issues Two Additional Rounds of Guidance in Advance of April 1, 2020, Effective Date for the Families First Coronavirus Response Act
By: Robert Young
Over the weekend, the Department of Labor (DOL) Wage and Hour Division (WHD) issued two additional rounds of guidance to help employers navigate issues relating to the Families First Coronavirus Response Act (FFCRA or the Act), as the effective date of the Act rapidly approaches on April 1, 2020.
The new guidance adds to the DOL’s “Questions and Answers” document it posted last week (we analyzed Q&As 1 – 14 here) and addresses critical questions regarding teleworking, intermittent leave, furloughs and definitions of certain employers/employees in response to the Emergency Family and Medical Leave Expansion Act (FMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
Here are some key highlights:
Teleworking Employees Are Not Entitled to Paid Leave:
- An employee whose employer allows them to telework his/her normal schedule (even if, for example, the teleworking employee works early in the morning or late at night) is not eligible for leave under the FFCRA unless a COVID-19 qualifying reason prevents them from working that schedule.
- If an employee cannot telework for a qualifying reason, the employee is entitled to emergency paid sick leave or expanded FMLEA, depending on the qualifying reason. This leave can be taken in any increment, so long as the employer and he employee agree on the amount.
Employees Can Only Take Intermittent Leave to Care for Children:
- An employee who still is permitted to go into work cannot take intermittent paid sick leave under the EPSLA, except to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons. Even when an employee is taking care of his/her child, intermittent leave can only be taken with the permission of the employer. For any other qualifying reason, the employee must take all their paid sick leave at the same time.
- For example, if the employer agrees, an employee may take intermittent paid sick leave on Mondays and Wednesdays to care for their child and may return to work at their normal worksite on Tuesdays, Thursdays and Fridays.
- Likewise, an employee may take intermittent expanded FMLEA to care for his/her child at home, provided he/she has permission from his/her employer.
Employers Are Not Obligated to Pay FMLEA or EPSLA Leave Following Worksite Closures, Furloughs and Reductions in Employee Hours:
- If an employer closes a worksite or business prior to or after April 1, 2020 because of a lack of work or in response to a governmental order, then expanded FML or emergency paid sick leave cannot apply once the worksite is closed.
- Likewise, if an employer furloughs an employee or reduces their hours prior to or after April 1, 2020 because of lack of work or in response to a governmental order, the employee cannot get expanded FML or emergency paid sick leave (unless the employee returns to work and then has a qualifying reason).
- If an employer closes its worksite because of lack of work or in response to a governmental order while an employee is already on emergency paid sick leave or extended FMLEA, the employer must pay that employee’s benefits up until the date the worksite closed, at which point the obligation to pay leave benefits ends.
Employees Cannot “Double Dip” FFCRA Leave with Unemployment Benefits or PTO:
- If an employee is collecting FFRCA paid sick leave or expanded FMLEA, he/she is not eligible for unemployment insurance. However, if the employee’s hours or pay have been reduced, the employee may be eligible for partial benefits depending on the unemployment guidelines in his/her State.
- If an employee is eligible to take paid sick leave or expanded FMLEA under the FFCRA, as well as paid leave that is already provided by his/her employer, the employee must choose one type of leave to take. The employee cannot simultaneously take both unless the employee is receiving two-thirds of his/her pay under the FFCRA and the employer and employee agree to allow the employee to supplement his/her leave with PTO time in order to receive full pay.
- Employers who allow employees to supplement their FFCRA leave should note they will only receive a tax credit for leave they are obligated to pay under the FFCRA.
- Employees are allowed to continue health insurance while on expanded FML (in the same way they are permitted to under traditional FMLA).
Employees Generally Have a Right to Return to Work After Taking Emergency Paid Sick Leave or Expanded FML:
- Employers are required to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.
- Employers are also prohibited from firing, disciplining or otherwise discriminating against an employee because he/she took leave under the FFCRA or because an employee filed a complaint or proceeding regarding taking leave under the FFCRA
- Employers, however, are permitted to lay off an employee on FFCRA leave, but (similar to a traditional FMLA analysis) the employer must be able to demonstrate it laid an employee off for legitimate business reasons (such as closure of a worksite).
Public Sector Employees Are Generally Covered Under the FFCRA:
- If an employee works for a public agency or other unit of government, he/she is generally entitled to paid sick leave under the EPSLA, with the exception of health care professionals and emergency responders as described below.
- Federal employees are most likely not entitled to expanded FML. However, non-federal public agency employees, such as employees who 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, are likely eligible for expanded FML.
Health Care Providers and Emergency Responders Are Generally Excluded from Paid Sick Leave or Expanded FML:
- As previously reported, the FFCRA provides that employers of health care providers and emergency responders can exempt such employees from the provisions of the FMLEA or the EPSLA.
- Prior to the DOL Guidance, the open question was the correct definition of “health care providers” and “emergency responders.”
- The DOL has now clearly answered that question in a broad manner by providing that 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.
- Further, the definition of “emergency responders” also is quite broad and includes any employee who is necessary for the transport, care, health care, comfort, and nutrition of COVID-19 patients, or whose services are otherwise needed to limit the spread of COVID-19. Specifically, emergency providers include:
- Military or national guard members, law enforcement officers, correctional institution personnel, firefighters, 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.
Small Businesses with Fewer Than 50 Employees May Be Exempt From The FMLEA and the EPSLA:
- A small business with fewer than 50 employees, including religious and non-profit organizations, can claim this exemption if providing FMLEA or EPSLA leave would:
- Result in the small business’s expenses and financial obligations exceeding available business revenues and would cause the small business to cease operating at a minimal capacity;
- Result in a substantial risk to the financial health or operational capabilities of the small business because of its employees’ specialized skills, knowledge of the business, or responsibilities; or
- Result in a shortage of employees who are able, willing, qualified and available to perform the labor or services necessary for the small business to operate at a minimal capacity.
- Importantly, a small business with fewer than 50 employees can only claim this exemption if the employee is seeking FMLEA or EPSLA leave due to a school or place of care closure or childcare provider unavailability for COVID-19 related reasons.
The DOL’s published guidance so far includes a Fact Sheet for Employers, Fact Sheet for Employees, the Questions and Answers document described above, as well as required workplace posters for federal and non-federal employers. We will update you if the DOL issues any additional guidance.
The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.
FMG has formed a Coronavirus
Task Force to provide up-to-the-minute
information, strategic advice, and practical solutions for our clients.
Our group is an interdisciplinary team of attorneys who can address the
multitude of legal issues arising out of the coronavirus pandemic, including
issues related to Healthcare, Product Liability, Tort Liability, Data Privacy,
and Cyber and Local Governments. For more information about the Task
Force, click here.
You can also contact your FMG relationship partner or email the
team with any questions at firstname.lastname@example.org.
**DISCLAIMER: The attorneys at Freeman Mathis & Gary,
LLP (“FMG”) have been working hard to produce educational content to address
issues arising from the concern over COVID-19. The webinars and our
written material have produced many questions. Some we have been able to
answer, but many we cannot without a specific legal engagement. We can
only give legal advice to clients. Please be aware that your attendance
at one of our webinars or receipt of our written material does not establish an
attorney-client relationship between you and FMG. An attorney-client
relationship will not exist unless and until an FMG partner expressly and
explicitly states IN WRITING that FMG will undertake an attorney-client
relationship with you, after ascertaining that the firm does not have any legal
conflicts of interest. As a result, you should not transmit any personal
or confidential information to FMG unless we have entered into a formal written
agreement with you. We will continue to produce education content for the
public, but we must point out that none of our webinars, articles, blog posts,
or other similar material constitutes legal advice, does not create an attorney
client relationship and you cannot rely on it as such. We hope you will
continue to take advantage of the conferences and materials that may pertain to
your work or interests.**