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April 2, 2020

Legal Update
Gwen Nolan King, Christine M. Netski

Department of Labor publishes additional guidance on the Families First Coronavirus Response Act

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With the Families First Coronavirus Response Act (“FFCRA”) effective on April 1, 2020, the U.S. Department of Labor (“DOL”) has issued a new round of guidance on the FFCRA in the form of FFCRA Q&A.

DOL’s Updated FFCRA Q&A

The DOL’s previously published FFCRA guidance was discussed by Sugarman Rogers here.  The updated FFCRA: Questions and Answers address a wide range of new issues.  Below are a few of the key takeaways:

Intermittent Leave for Teleworking Employees is Allowed:

Teleworking employees unable to work their normal schedule of work hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act may take paid sick leave intermittently if the employer and employee agree.   Similarly, if a teleworking employee needs to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take expanded family medical leave intermittently if the employer agrees to such leave.  For teleworking employees, intermittent leave can be taken in any increment (e.g. hours) agreed to by the employer and the employee. See Q&A 19-20.

Intermittent Leave for Onsite Employees is Allowed in Certain Situations:

Intermittent expanded family medical leave for onsite employees who need to care for a child because of COVID-19 related reasons is allowed if the employee and the employer agree. For example, an employer and employee could agree that the employee will only come to work two days a week and use expanded family medical leave on the other three days to take care of an employee’s child.  However, unlike paid sick leave for teleworking employees, onsite employees cannot take paid sick leave intermittently unless their only qualifying reason is to care for a child whose school or child care is unavailable for COVID-19 related reasons.  This limit is imposed because if an employee is sick, possibly sick, or caring for someone who is sick or possibly sick with COVID-19, the goal is to enable employees to stay home and prevent further spread of the virus.  See Q&A 21-22.

Employers May Not Supplement Paid leave under the FFCRA with other Paid Leave Unless Employee Agrees:

Paid sick leave and expanded family medical leave under the FFCRA are in addition to an employee’s preexisting leave entitlements.  Employers may permit (but not require) employees to use existing vacation, PTO, or sick leave to supplement the amount of pay they receive while on leave under the FFCRA up to the employee’s normal earnings.  Both the employer and the employee must agree to use preexisting leave to supplement the paid leave under the FFCRA.  If supplemental leave is taken to increase employees’ pay while on leave under the FFCRA, employers may not claim tax credits for those supplemental amounts.  See Q&A 31-32.

Eligible Employees under the FFCRA:

Eligibility for both paid sick leave and expanded family and medical leave is governed by the definition of employee under the Fair Labor Standards Act.  Employees are eligible for paid sick leave regardless of their length of employment, but an employee must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. For example, if an employee requests expanded family and medical leave on April 10, 2020, he or she must have been an employee since March 11, 2020.  See Q&A 38.

Employee’s Prior Use of FMLA Leave Impacts Availability of Leave under FFCRA:

If an employee already used FMLA leave during the current 12-month period as calculated by the employer (see Fact Sheet #28H), the employee is only eligible to use what remains of their 12 weeks of FMLA leave (if any) for COVID-19 related reasons.  See Q&A 44.

The Small Business Exemption to the FFCRA:

An employer with fewer than 50 employees is exempt from providing paid sick leave or expanded family and medical leave due to the closure of schools or unavailability of child care for COVID-19 related reasons when doing so would jeopardize the viability of the small business.  To claim this exemption, an authorized officer of the business must determine that:

  1. Providing the leave would result in the small business’s expenses and financial obligations exceeding available business revenues; or
  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 its 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.
    See Q&A 58-59.

Review the complete Q&A here: Families First Coronavirus Response Act: Questions and Answers

Sugarman Rogers is closely following the quickly evolving landscape for employers during the COVID-19 pandemic.  If you have questions or need compliance assistance, please contact Christine M. Netski or Gwen Nolan King