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Tuesday, March 31, 2020 – DEPARTMENT OF LABOR ISSUES GUIDANCE ON FFCRA PAID SICK LEAVE AND EMERGENCY FAMILY AND MEDICAL LEAVE

3/31/2020 | Articles & Alerts, General, News & Resources

The Department of Labor (DOL) has issued guidance on the Families First Coronavirus Response Act (FFCRA) by updating a list of “Questions and Answers” about the FFCRA on the DOL.gov site. Below is a summary of some critical points in that guidance:

  • EFFECTIVE DATE OF LEAVE ENTITLEMENTS: The DOL has stated that the first available date for leave is April 1, 2020. The Effective Date of the FFCRA is April 2, 2020, which was 15 days from the FFCRA’s passage into law but the DOL has determined that the leaves provided in the FFCRA will be available on April 1, 2020.

GUIDANCE ON PAID SICK LEAVE

  • Employees get paid leave based upon all hours worked, including overtime, capped at 80 hours
    • If an employee works 50 hours in a week, the employee is paid 50 hours in one week and then 30 in the next week for a total of 80 hours
    • NO overtime premium is required for sick leave hours paid over 40
  • Paid Sick Leave capped at 80 hours total, regardless of whether employee develops different reasons for leave
    • If employee uses 80 hours of Paid Sick Leave because the employee’s child’s school is closed and later the employee becomes sick with the coronavirus, the employee does not get another 80 hours of Paid Sick Leave
  • Coordination of benefits under Paid Sick Leave and Emergency Family and Medical Leave (Emergency FMLA)
    • Emergency FMLA ONLY applies if employee needs to stay home to care for a child because school is closed or a childcare provider is not available
    • First 10 days of Emergency FMLA is UNPAID
    • BUT – Employee can use 80 hours of Paid Sick Leave (capped at 2/3 of pay up to a maximum of $200/day) to stay home with a child because school is closed or childcare provider is unavailable
    • Employee can choose to use paid time off available through employer to cover first 10 days of Emergency FMLA (i.e. so that employee can receive full pay vs. 2/3 pay) and not use the employee’s Paid Sick Leave entitlement
      • Employer cannot require employee to use paid time off when Paid Sick Leave available, but employee can choose to do so
    • After 10 days, for employees who still need to stay home with a child because school is closed or childcare provider is unavailable, employee is entitled to up to 10 additional weeks of Emergency FMLA
  • Paid Sick Leave is a “new” or additional leave entitlement – employer cannot deny 80 hours of Paid Sick Leave because employer previously gave sick leave to employees
    • Paid Sick Leave is NOT retroactive – prior leave does not count toward 80 hours
  • Intermittent use of Paid Sick Leave
    • Paid Sick Leave can be used on an intermittent basis only if the employer agrees AND the employee is able to telework
      • Paid Sick Leave cannot be used intermittently if the employee needs to report to the employee’s usual worksite because the purpose of the leave is to prevent the employee from spreading the coronavirus at the worksite
    • Employee is paid the employee’s regular rate of pay for time actually worked and pay at the Paid Sick Leave rate for leave time taken
    • Employer must agree to intermittent use and therefore may require scheduled use of intermittent leave (DOL is “encouraging” employers and employees to work together on intermittent leave)
    • If employee uses Paid Sick Leave to care for a child because school is closed or a childcare provider is unavailable, intermittent leave can be used to cover leave time needed outside of telework OR time spent at worksite
      • Employee can telework for 4 hours in the morning (paid at regular rate) and then take 4 hours of Paid Sick Leave to homeschool the employee’s child (paid at statutory rate)
      • Employee can report to the worksite for 4 hours (paid at regular rate) and take 4 hours of Paid Sick Leave to homeschool the employee’s child (paid at statutory rate)
    • Intermittent leave can be taken in any increment agreed by employer and employee (i.e. 1-hour increments)

GUIDANCE ON EMERGENCY FAMILY AND MEDICAL LEAVE

  • Emergency FMLA remains the only paid leave available under the FMLA
  • Emergency FMLA is NOT retroactive and cannot be used to cover absences prior to 4/1/20
  • Emergency FMLA is available only until 12/31/20
  • Emergency FMLA is not in addition to other FMLA which may be taken
    • If an employee already took 12 weeks of FMLA in the 12-month period used by the employer to calculate FMLA (i.e. the rolling 12-month period prior to the need for Emergency FMLA), then employee has used the employee’s FMLA entitlement and is not entitled to take Emergency FMLA
    • If an employee takes 12 weeks of Emergency FMLA and later has another FMLA-qualifying need for leave in the same 12-month period (i.e. the employee needs to treat for the employee’s own serious health condition), the employee will not be entitled to take FMLA leave. If the employee took only 6 weeks of Emergency FMLA, the employee would be entitled to take 6 weeks of FMLA to treat for the employee’s own health condition (until a “new” 12-month period begins)
    • Employees still are entitled to Paid Sick Leave to stay home with a child due to a school closure or unavailable childcare provider even if an employee cannot use Emergency FMLA due to prior FMLA leave use
  • Intermittent Leave
    • Emergency FMLA can be taken intermittently if the employer agrees
    • Time actually worked is paid at regular rate of pay, Emergency FMLA leave is taken at 2/3 regular rate of pay, up to $200/day
    • As with Paid Sick Leave, time can be taken in increments agreed upon by the employer and employee (i.e. 1-hour increments)
  • Exemption from having to provide Emergency FMLA
    • Guidance indicates that exemption is only available for employers with less than 50 employees which are otherwise required to provide Paid Sick Leave and Emergency FMLA due to an employee’s need to take care of a child due to a school closure or the unavailability of a childcare provider
    • Employer must then show that 1 of the following 3 requirements is met:
      • The provision of the leave would result in the employer’s expenses exceeding available business revenues and cause the business to cease operating at a minimal capacity; or
      • The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the employer because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
      • There are not sufficient workers who are able, willing, and qualified and will be available at the time and place needed to perform the services by the employee or employees requesting leave, and those services are needed for the employer to continue operations at a minimal capacity.

GUIDANCE APPLICABLE TO PAID SICK LEAVE AND EMERGENCY FMLA

  • Employer will need to document need for leave to obtain tax credit
  • Documents which employers can request to demonstrate the need for leave
    • School closures – notice on website, email from school
    • Quarantine order –
      • Government mandated quarantine – copy of order from Board of Health or equivalent if applicable
        • Guidance does NOT answer question of whether state or county-wide “stay at home” orders of certain states qualify. Those orders generally permit travel to work, essential personal errands, and outdoor recreation. Open issue – if the employer is open for business and the employee is not sick, under a specific order to stay home because of the employee’s illness or that of an immediate family member, or required to stay home with a child due to a school closure, AND the “stay at home” order allows travel to work, it would seem that leave under the Act is not available, but we do not have a specific regulation on the issue as of yet
      • Quarantine recommended by healthcare provider – document from the office – i.e. doctor, nurse practitioner, or similar provider
        • NOTE – the CDC still advises that employers should refrain from asking for doctors’ notes unless absolutely necessary, so employers should discuss with employees what evidence the employee has and attempt to agree on what the employee can obtain and provide to the employer
    • Guidance states that employers are NOT required to provide leave if the employee cannot produce materials sufficient to support the employer’s ability to obtain the tax credit applicable to the leave
  • Availability of leave where office closes
    • If office closes before 4/1/20, employee is not entitled to leave
    • If office closes after 4/1/20 and employee is on leave, the employee is entitled to complete the employee’s Paid Sick Leave or Emergency FMLA and after that leave ends, if the employer still is closed, the employee may apply for unemployment compensation
  • Availability of leave where employee hours are reduced (or furloughed)
    • Leave is not available due to hour reduction (in the absence of other reason, such as employee illness)
    • Employee may be entitled to unemployment compensation
  • PTO to supplement pay – an employee may use employer provided paid time off to supplement the amounts paid under Paid Sick Leave or Emergency FMLA if the employee chooses to do so
    • If employee is entitled to 2/3 pay under Paid Sick Leave or Emergency FMLA, employee can request to use paid time off to supplement wages up to the employee’s normal rate of pay
    • Employer must agree to do so – not an employee entitlement
    • Employer still only gets tax credit up to amount stated in FFCRA
  • Restoration to job position after leave ends
    • Employee is entitled to be restored to the employee’s position or an equivalent position at the end of leave
    • Employee not entitled to be returned to job if the employer can show that the employee would have lost the employee’s job even if the employee had not taken leave (i.e. company closed, the employee’s entire department was eliminated or laid off)

To view the entire list of Questions and Answers on the FFCRA, click here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

We will provide further updates as major developments warrant. If you would like to discuss further, please contact Kimberly L. Russell, Esquire by telephone at (610) 941-2541, by email at krussell@kaplaw.com.