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DOL Continues to Answer Key FFCRA Questions For Employers

March 30, 2020

By Francis T. Barnwell & Kathryn M. Hindman

Expanding its initial guidance on employer obligations under the emergency paid leave provisions of the Families First Coronavirus Response Act (FFCRA or “Act”), the U.S. Department of Labor has issued additional FAQs that further explain a number of key aspects and obligations under the FFCRA. Effective April 1, the Act provides for emergency paid sick leave (EPSL) and emergency paid Family and Medical Leave Act benefits (EPFMLA) for specified reasons related to COVID-19, applicable to certain public employers, and private sector employers with fewer than 500 employees. (Link to USDOL FAQs here.)

The following overview summarizes the important clarifications in the updated DOL guidance, with references to the relevant  FAQ explanations:
  • Furlough and temporary layoffs: Employees are not eligible for EPSL or EPFMLA during furloughs or temporary layoffs, or following a worksite closure, and employees will not continue to receive leave benefits if their employer furloughs or lays them off while on leave. In this situation, an employee’s recourse is unemployment benefits (FAQ #23-28.)
    • If an employer reduces an employee’s hours, the employee is still eligible to use leave for the new reduced hours schedule, but not for hours the employee is no longer scheduled for work.
  • Full-day increments: EPSL and EPFMLA generally must be taken in full-day increments (FAQ #21).
  • Intermittent leaveEPSL and EPFMLA may be used intermittently, including intermittent leave while teleworking (for any qualifying reason), as well as intermittent leave if the employee is working at usual worksite for COVID-19 childcare reasons, but in any intermittent leave situation, it is available only if the employer consents to such intermittent leave (FAQ #20-22).
  • Government ordered worksite closure: Employees are not eligible for leave if their worksite is ordered closed by a state or local government ordered business closure, such as that under Oregon Governor Brown’s “Stay Home. Save Lives” Order, and other states’ “shelter in place” orders (FAQ #27).
  • “Top-off”: Employees may “top off” their FFCRA payments with accrued paid time off to bring it up to 100% of pay, but only if the employer agrees (FAQ #31); likewise, employers may not require employees to “top off” FFCRA pay with accrued paid time unless the employee agrees (FAQ #32-33).
  • Documentation: Although the DOL’s third set of guidance modified its original stance on the documentation employers may require for the need for qualifying leave, the updated guidance confirms that employers may still require employees to submit appropriate documentation to verify their need for EPSL and EPFMLA. Documentation may include quarantine or isolation orders, doctor’s recommendations, or a notice of a school or place of care closure (FAQ #16).  If the employee fails to provide documentation, an employer need not provide the leave.  Employers should maintain supporting documentation provided by employees to support tax credits. 
  • Excluded health care providers and emergency responders: The definitions of those heath care providers and emergency responders exempt from EPSL and EPFMLA are broad. Health care providers include anyone employed at a doctor’s office, hospital, health care center, clinic, medical schools and post secondary education offering health care instruction, local health departments or agencies, nursing and retirement facilities, pharmacies, and healthcare providers in any facility that performs laboratory medical testing, as well as individuals employed by an entity that contracts with any of these institutions, or employers and anyone employed by any entity that provides medical services or produces medical products.

    An emergency responder includes any employee necessary for the transport, care, health care, comfort, and nutrition of patients, or whose services are needed to limit the spread of COVID-19. This includes, but is not limited to military or national guard, law-enforcement officers, correctional personnel, firefighters, physicians, nurses, public health personnel, EMTs, paramedics, 911 operators, Public Works personnel and persons with skill or training in special equipment or other skills needed to provide aid in a declared emergency, as well as those who work for those facilities and whose work is necessary to maintain the operation of the facility. It may also include individuals the Governor deems as an emergency responder necessary for the state’s response to COVID-19 (FAQ #55-56). To help minimize the spread of COVID-19, DOL encourages employers to be judicious when applying its new definitions for those who qualify for the “health care provider” or “emergency responder” exemption.

    Note that the DOL borrowed the FMLA’s definition of “health care provider” for purposes of determining who may advise on self-quarantine for EPSL, to include licensed doctors of medicine, nurse practitioners, or other health care providers permitted to issue FMLA medical certifications.
  • COVID-19 school/childcare closure exemption for employers with under 50 employees: Under the Act’s “Small Business Exemption”, employers with fewer than 50 employees, including religious or nonprofit organizations, may only claim an exemption under EPSL or EPFMLA for COVID-19 school/childcare closure reasons, and only if an “authorized officer” of the business determines that any one of the three situations apply:
    • Providing EPSL or EPFMLA for COVID-19 school/childcare closure reasons would result in the business’s expenses and financial obligations exceeding its business revenues and cause the business to cease operating at a minimal capacity;
    • The employee’s absence as a result of EPSL or EPFMLA would constitute a substantial risk to the business’s financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities the employee processes; or
    • There are insufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the work provided by the employee or employees requesting EPSL or EPFMLA, and these services are needed for the business to operate at a minimal capacity.

      Small employers with fewer than 50 employees are not exempt from providing EPSL for other reasons (FAQ #1-4 and 6) related to the employee’s COVID-19-related medical or family care (FAQ #58-59).
  • Restoration relief for small employers with fewer than 25 employees: Employers with 24 or fewer employees may deny an employee reinstatement under two circumstances: if the employee is a FMLA “key” employee (salaried exempt and among the highest paid 10% within 75 miles of the employee’s worksite), or if the employer can show that all four of the following hardship conditions exist: (1) The position no longer exists due to economic operating conditions that affect employment and due to COVID-19-related reasons during the period of EPFMLA leave, (2) the employer made reasonable efforts to restore the employee to the same or equivalent position, (3) the employer makes reasonable efforts to contact the employee if an equivalent position becomes available, and (4) the employer continues to make reasonable efforts to contact the employee for one year from the date the COVID-19 leave ended, or the date 12 weeks after EPFMLA began, whichever is earlier (FAQ #43).
  • Definition of full-time and part-time employees: Employees are full-time (so may receive up to 80 hours of EPSL) if their employer normally schedules them to work 40 or more hours a week. Employees who are not full-time, are “part-time” and receive EPSL hours equivalent to the number of hours the employee works on average over a two week period. EPFMLA does not distinguish between full and part-time employees, but the “number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive” (FAQ #48-49).

We are monitoring developments and anticipate further DOL guidance in the near future. For further information, feel welcome to contact any Bullard Law attorney.

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