The Families First Coronavirus Relief Act’s (“FFCRA”) swift enactment left employers scrambling to interpret its provisions. Fortunately, the Department of Labor has issued temporary regulations that resolve many common questions and scenarios. Final regulations are expected on April 6th.
The FFCRA provides two types of paid leave: the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”). You can read about the basic provisions of FFCRA here. This post summarizes some critical issues concerning FFCRA implementation.
Employee Eligibility for FFCRA Leave
All employees of a covered employer are eligible for EPSLA leave. The regulations provide that employees are entitled to two weeks of EPSLA leave, rather than the ten days provided for by the statute. Where an employee works eighty hours Monday through Friday the change is clerical.
Employees must be employed for thirty days to qualify for EFMLEA leave. The thirty-day period is measured from when the employee first appeared on the payroll. If an employer rehires a terminated employee before the end of 2020, the employee is entitled to leave provided he or she was employed for thirty or more of the sixty days prior to termination.
Notably, “health care provider” employers may choose to exempt employees from the leave provisions of the FFCRA to ensure sufficient staffing to fight the pandemic.
Employers with Fewer Than 50 Employees
An employer with fewer than fifty employees could be exempt from the FFCRA if providing leave would jeopardize the business “as a going concern.” The regulations provide three separate criteria to assess whether a small business qualifies for the exemption.
An employer should invoke the exemption per these criteria on a case-by-case leave request basis, as opposed to a blanket entity-wide basis. If an employer denies a leave request pursuant to this exception, it must document the facts and circumstances supporting its decision and retain those records.
Intermittent leave is solely available (1) when the employee and employer agree to intermittent leave and (2) where the employee is caring for a Son or Daughter whose school or “place of care” is closed or “child care provider” is unavailable because of COVID-19 reasons. Intermittent leave is not available for any of the five additional reasons for leave per the EPSLA.
Assuming an employer agrees to intermittent leave, a teleworking employee may take it in “any agreed increment of time.” Employees that continue to report to a workplace may only take intermittent leave “where there is minimal risk that the employee will spread COVID-19” at the worksite.
Leave to Care for a Son or Daughter Due to School Closure or Child Care Unavailability
The regulations confirm that leave to care for a child is limited to a Son or Daughter who is under 18 years of age. IRS regulations further require that leave taken to care for a child 14 or older during daylight hours be supported by an explanation of special circumstances, as a condition for employers to receive tax credits.
The regulations make clear that any prior FMLA leave taken by the employee in the employer’s leave year reduces the amount of EFMLEA leave available to that employee. For example, if an employee already took four weeks of FMLA leave in their leave year due to their own or a family member’s “serious health condition,” they would only be entitled to eight weeks of EFMLEA leave.
Documentation of Need for Leave
Many employers have asked what documentation they may request when an employee seeks FFCRA leave. The regulations provide that employees must provide a signed statement including:
- the employee’s name;
- the date(s) for which leave is requested;
- the COVID-19 qualifying reason for leave; and
- a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
In addition to this statement, an employee must provide additional information depending on the reason for leave. For example, if the leave is due to a quarantine order, the employee must provide a copy of the government-issued order. Employees requesting leave because they are advised to self-quarantine by a health care provider due to COVID-19 concerns must identify the health care provider. Employees requesting leave to care for their child must identify (1) the child’s name and age, (2) the school or child care provider that is unavailable due to COVID-19, and (3) a certification that no other suitable person is available to care for the child during the period of requested leave. If a co-parent is available to care for the child, the employee is not entitled to leave.
If an employee requests FMLA leave for his or her own or a family member’s serious health condition related to COVID-19, regular FMLA requirements remain in effect. Note that the amended employer threshold per EFMLA (i.e., fewer than 500 employees) is only applicable to the single EFMLA qualifying need for leave (to care for a son or daughter due to a school or other child care provider closure due to COVID-19), and not to the usual FMLA qualifying events (e.g., a serious health condition, parental leave, adoption, etc.)
Employees able to work or telework are not entitled to paid benefits under EPSLA and EFMLA. An employee can telework if the employer (1) has work for the employee, (2) the employer permits working offsite, and (3) no “extenuating circumstances” including serious COVID-19 symptoms preventing the employee from actually working. The regulations recognize that telework is “work for which wages must be paid.” So, employees must be compensated for “all hours actually worked and which the Employer knew or should have known were worked by the Employee.” In the age of COVID-19 teleworking, it is essential that non-exempt employees record and report all hours actually worked, and a best practice for exempt employees to do the same.
To promote flexibility, the regulations provide one major departure from the normal calculation of an employee’s hours: suspension of the DOL’s “continuous workday guidance,” which provides that all time between an employee’s first and last principal activities is compensable work time. See 29 CFR § 790.6(a). Teleworking generally results in employees spreading out working time throughout the day to care for dependents or complete other household tasks as necessary. Consequently, an employer need not compensate an employee for periods of time not actually working; doing so would artificially—and potentially dramatically—increase wages due to non-exempt employees. If your business does not yet have a uniform system for remote time tracking, it is essential you adopt and implement one as soon as possible.
Finally, as noted elsewhere, employees able to telework may not simultaneously collect paid FFCRA leave, but, if agreed upon with the employer, may take such leave intermittently.
Return to Work
FFCRA leave protects an employee’s right to return to work. Employers may eliminate positions for legitimate, non-retaliatory business reasons unrelated to FFCRA leave, however. For example, if an employer implements a reduction in force while an employee is on paid sick leave, and the employer would have eliminated the employee’s position regardless of the paid leave, the employer may terminate the employee. Keep in mind the employer must pay out any paid sick leave through the date of termination.
The regulations provide that employers must keep all documentation related to FFCRA leave requests for four years, whether the request was granted or denied. Even where an employee provides information orally, the employer must reduce it to writing, and save the documentation. Accordingly, we recommend employers require employees to submit all leave request information in writing and electronically. The document retention requirement applies to requests denied due to the small business exemption. In addition, employers should require employees supplement information concerning leave upon request, where necessary to recover tax credits.
The DOL regulations provide clarity on some key issues, but employers will continue to grapple with FFCRA implementation throughout 2020. Murtha attorneys are available to discuss your specific COVID-19 leave scenarios as necessary.