The federal Department of Labor (DOL) continues to update its Families First Coronavirus Response Act (FFCRA) FAQ leading up to the April 1, 2020 implementation. Over the past week, the DOL has supplemented the FFCRA FAQ several times to provide guidance and clarifications concerning lingering questions. Some of the recent clarifications we find helpful are below.

Documentation to support emergency FMLA or paid sick leave. According to the DOL, employees must provide employers with documentation to support emergency FMLA or Paid Sick Leave (PSL). The FFCRA is silent about verifying leave requests, so any guidance is useful. For example, an employee would need to provide a quarantine or isolation order if taking leave for that reason, or a school notice advising of a closure.

Notably, the DOL states an employer is “not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.”

The DOL advises employers to retain employee-provided documentation if they will claim tax credits under FFCRA. The IRS will apparently issue applicable forms and instructions with additional information.

The DOL also advises that “all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.”

When is someone unable to telework? The emergency FMLA and PSL qualifying events generally require that an employee must be unable to work or telework to qualify for FFCRA leave. The DOL states an employee is unable to telework when an employer provides the employee with work that can be performed at home, but the employee can’t do the work because of one of the FFCRA qualifying reasons. This would include taking care of a child because of a school or child care closure, although the DOL cautions, “to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.”

Note the DOL also states that an employee can telework where the employee and the employer agree that the employee can work the normal number of hours, but outside of the normally scheduled hour (e.g., early in the morning or late at night).

How are “Health Care Provider” and “Emergency Responder” interpreted? The FFCRA allows employers to exempt “health care provider” and “emergency responder” employees from the emergency FMLA and PSL benefits. FFCRA, however, does not define either term.

The DOL takes an expansive view of “health care provider” for purposes of the exemption as “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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” The definition includes “any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

The DOL defines “emergency responder” as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

When does the small business exception apply? Employers with fewer than 50 employees are exempt from providing emergency FMLA or PSL if doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an “authorized officer” of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  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 their 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.

Until further notice, employers claiming this exemption should document their decision-making process and hold pending further instruction. Do not submit any documents to the DOL.

Intermittent use of PSL or emergency FML. Generally, employees may use emergency FMLA intermittently when teleworking. If, however, an employee is working at the employer’s place of business, the employee may only use intermittent leave with the employer’s permission.

As for PSL, unless an employee is teleworking, PSL must be taken in full-day increments. Practically speaking, employees may only use intermittent emergency PSL if they are caring for a child whose school or daycare provider is closed because of COVID-19 reasons.

Layoffs, Furloughs, and Closures. If an employer closes a worksite on or after April 1 (the FFCRA effective date), but before an employee goes out on leave, the employee is not entitled to PSL or emergency FMLA leave. That point seemed clear prior to the DOL’s guidance.

  • What happens when an employer closes an employee’s worksite while the employer is on protected FFCRA leave? The employer must pay the employee for benefits used before the employer closed, but as of the date of the worksite closure the employer is no longer liable for FFCRA benefits. This remains true even where the employer intends on reopening in the future.
  • Are furloughed employees entitled to FFCRA benefits?? The DOL says “no.”
  • If an employer reduces an employee’s work schedule, can the employee use PSL or emergency FMLA to make up the hours he or she is no longer scheduled to work? No, because the employee is not prevented from working those hours due to a COVID-19 qualifying reason.

Supplementing FFCRA Paid Leave.  The DOL says that, absent employer-employee agreement, an employee cannot use preexisting leave entitlements and FFCRA leave at the same time so that the employee can make up the gap between capped FFCRA paid leave and his or her normal wages. Unless an employer agrees to such use, the employee must choose one type of leave. If the employer does allow an employee to supplement FFCRA leave with preexisting leave entitlements, an employer won’t be eligible for FFCRA tax credits on the supplemental paid leave (only the FFCRA paid leave).

Also note that an employer cannot force an employee to supplement FFCRA paid leave with existing paid leave. Any supplement must be agreed upon.

Regular FMLA remains unpaid. The DOL clarified that the only type of paid leave per the Family and Medical Leave Act is the single scenario identified in the FFCRA, i.e., an employee must care for a child whose school or place of care is closed, or child care provider is unavailable due to COVID-19 reasons. So, the usual FMLA qualifying events remain unpaid job-protected leave. Of course, employers must still consider the FFCRA’s emergency PSL.

In addition to the above, please note that your state may provide additional leave beyond that required by the FFCRA.

Murtha Cullina’s Labor and Employment Group continues to monitor the situation, including the release of additional DOL guidance.  If you have any questions, please contact a member of the Labor and Employment Group.

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Photo of Matthew K. Curtin Matthew K. Curtin

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy…

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy laws including the Health Insurance Portability and Accountability Act (HIPAA) and the General Data Protection Regulation (GDPR). Matthew is particularly interested in advising his clients concerning employment privacy matters. Matthew is a member of the International Association of Privacy Professionals.

In Matthew’s labor and employment practice, he has successfully represented employers of all sizes concerning a wide variety of claims before state and federal courts, the National Labor Relations Board, the Connecticut State Board of Mediation and Arbitration, the Connecticut State Board of Labor Relations, the Connecticut Commission on Human Rights and Opportunities, and other various administrative agencies.

Matthew has substantial experience with collective bargaining negotiations, labor arbitrations, and labor relations. He regularly counsels senior management and human resources professionals concerning employment contracts, employment policies, hiring and termination procedures, workplace investigations, and harassment and discrimination avoidance.

Matthew has significant experience representing businesses in litigation concerning trade secret theft, unfair competition, and breach of non-competition and non-solicitation agreements.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.