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Written By: Kylie E. Mote

The United States Department of Labor’s (DOL) Wage and Hour Division has issued additional guidance on the paid leave provisions of the newly-enacted “Families First Coronavirus Response Act” (FFCRA). The FFCRA, which was signed into law on March 18, 2020, authorizes an emergency relief package intended to support individuals impacted by the COVID-19 (Coronavirus) public health emergency. The support includes temporary paid sick and emergency family leave for eligible employees. The FFCRA takes effect on April 1, 2020.

While the DOL has not yet issued official regulations to help clarify the FFCRA’s paid leave provisions, it has published a series of “Questions and Answers” designed to provide employers and workers with more information about the law’s requirements. Following below are the highlights of the DOL’s most recently-released guidance. For more information about the FFCRA’s paid leave provisions, please refer to our earlier notices:

“Information for Employers on New Coronavirus Relief Law”

“Update on the Families First Coronavirus Response Act: Paid Sick Leave and Emergency Leave Requirements Begin April 1, 2020”

DOCUMENTATION OF NEED TO USE PAID LEAVE:

In initial guidance, the DOL set forth specific types of documentation required to support an employee’s use of paid sick leave for medical purposes. In its most recent guidance, the DOL eliminated its discussion of specific documentation, directing employers instead to applicable IRS forms and instruction (soon to be published). With that said, the DOL continues to indicate that employers may still request appropriate supporting documentation from employees and need not provide paid sick leave if employees do not provide materials sufficient to support a tax credit.

For employees who take paid leave for purposes of caring for their child due to COVID-19 related school closures or childcare unavailability, the DOL notes that employers can require appropriate documentation in support of such leave, just as they would for conventional leave requests under the Family and Medical Leave Act (FMLA).

If employers intend to claim a tax credit under the FFCRA for payment of paid leave, they should retain any supporting documentation provided by employees in their records.

WHAT IS MEANT BY “UNABLE” TO WORK OR TELEWORK

The DOL specifies that being “unable” to work or telework means that an employer has work available, but the employee is unable to perform the work, either under normal circumstances at the regular worksite or by telework, because of a qualifying reason identified by the FFCRA.

The DOL is not entirely clear on who is responsible for deciding whether an employee is able to telework under these circumstances: the employer or the employee. While the DOL does not answer that question directly, it does indicate that the decision should be made jointly between the employer and employee. Specifically, the DOL’s guidance states the following:

If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.”

PAID LEAVE IF UNABLE TO TELEWORK

Employees are eligible for paid leave in the event that they are unable to perform assigned teleworking tasks, or they are unable to work the required teleworking hours, due to a COVID-19 qualifying reason. The DOL reiterates that paid leave is also available to employees who are unable to telework because they are caring for their children due to COVID-19 related school closures or childcare unavailability. To the extent employees are able to telework while caring for their children, however, paid leave is not available.     

TAKING PAID LEAVE INTERMITTENTLY

Provided that employers agree with the arrangement, employees may take paid leave intermittently while teleworking. For example, employers and employees may agree that the employee will telework a portion of the workday and then utilize paid leave for the remainder of the day. Or employers and employees could agree on a schedule under which an employee teleworks three full workdays during the week and takes paid leave for the other two workdays. The DOL encourages employers and employees to collaborate regarding teleworking schedules and to remain flexible in an effort to meet mutual needs.

Provided that employers agree, employees may also take paid leave on an intermittent basis if they are working at their normal worksite, i.e., they are not teleworking, but require paid leave to care for their children due to COVID-19 related school closures or childcare unavailability. The DOL again emphasizes that employers and employees should attempt to be flexible with respect to alternative work schedules.

If employees are continuing to work at their normal worksite and are not taking paid sick leave to care for a child due to COVID-19 related school closures or childcare unavailability, they must take the paid sick leave in full-day increments. Once the employee begins taking paid sick leave, the employee must continue to take paid sick leave each day until the employee either: 1) uses the full amount of paid sick leave available; or 2) no longer has a qualifying reason for taking leave.

NO PAID LEAVE FOR WORK CLOSURES, FURLOUGHS, AND LAYOFFS

Paid leave is not available to any employee in the event that an employer closes its worksite, either temporarily or permanently, because it does not have work for employees or is forced to close under government order. It does not matter whether 1) the closure occurs before or after the FFCRA’s April 1, 2020 effective date; 2) an employee is already on paid leave when the closure occurs (the employee is only entitled to FFCRA paid leave starting April 1, 2020 through the effective date of the worksite closure); 3) an employer furloughs an employee; or 4) the worksite closure is only temporary.

The DOL is clear that paid leave is not available to any employee on furlough, temporary or permanent layoff, or reduced hours due to a lack of work or business.

Employees who are not eligible to receive paid leave as a result of these circumstances may be eligible for unemployment benefits.  

CONTINUING HEALTH COVERAGE

When an employee takes paid leave under the FFCRA, employers must continue the employee’s group health coverage on the same terms as if the employee had continued to work.

FFCRA PAID LEAVE WITH AN EMPLOYER’S EXISTING PAID TIME OFF ALLOWANCE

If employees are eligible to take paid leave under the FFCRA, as well as paid leave that is already provided by their employer (e.g., vacation), the employees have the sole discretion to use the FFCRA paid leave or the existing paid leave provided by their employer. Employers cannot dictate what type of leave their employees use under these circumstances.

Employees may not, however, choose on their own to supplement the pay received when taking FFCRA paid leave with existing paid leave provided by their employer. For example, employees cannot decide unilaterally to use one-third of available vacation days to “top off” any FFCRA paid leave that is provided at only two-thirds of the employee’s regular pay (so as to receive a full day of pay). Employees who wish to “top off” FFCRA paid leave with existing paid leave must obtain their employer’s consent (note, however, that employers cannot require employees to supplement). 

The DOL makes clear that employers cannot claim or receive tax credit for any supplemented paid leave.  

SMALL BUSINESS EXEMPTION

In its most recently-released guidance, the DOL clarifies that small employers with fewer than 50 employees may be exempted from the FFCRA’s paid leave requirements if their authorized officer determines one of the following applies:

  • Providing paid leave relating to school closures/childcare unavailability would cause the business’s expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity; 
  • The employee’s absence for school closure/childcare unavailability reasons would entail a substantial risk to the business’s financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities the employee possesses; or 
  • There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee requesting school closure/childcare unavailability leave, and these labor or services are needed for the business to operate at a minimal capacity.

The DOL is clear that the small business exemption is only available with respect to employees requesting FFCRA paid leave for school closure/childcare unavailability. Small employers are not exempt from providing FFCRA paid sick leave to employees for reasons unrelated to school closure/childcare unavailability.

HEALTHCARE PROVIDER AND EMERGENCY RESPONDERS

Employers of healthcare providers and emergency responders are permitted to exclude those employees from FFCRA paid leave benefits. In its most recent guidance, the DOL has broadly defined “healthcare provider” to include “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 of “healthcare provider” also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities 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 further 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 also takes a broad stance on which employees constitute emergency responders under the FFCRA. An “emergency responder” is defined 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.” The DOL guidance extends the exemption to, among others, law enforcement officers, correctional institution personnel, fire fighters, EMS personnel, physicians, nurses, public health personnel, paramedics, EMT, 911 operators, and public works personnel.

PAID LEAVE ABSENCES COUNT TOWARD WAITING PERIOD FOR HEALTH COVERAGE

The DOL states that eligibility requirements for employer-provided health coverage, including a waiting period, apply in the same way as if the employee continued to work, including days spent on paid leave.

TOTAL FMLA LEAVE AVAILABLE

The DOL clarifies that the FFCRA’s emergency family leave provisions do not change the overall amount of FMLA leave available to employees during an applicable FMLA 12-month period.

For example, if an employee takes some, but not all, of the 12 weeks of emergency family leave provided by the FFCRA, he or she is still eligible to take the remaining portion of conventional FMLA leave (for a qualifying reason, e.g., a serious health condition) so long as the total time taken does not exceed 12 workweeks in the 12-month period. On the other hand, if an employee uses all 12 weeks of emergency family leave provided by the FFCRA, he or she will not be eligible to take any additional conventional FMLA leave during the same 12-month period.

30 DAYS TO COMPLY IN GOOD FAITH

The DOL will observe a temporary period of non-enforcement for the first 30 days after the FFCRA’s April 1, 2020 effective date, so long as the employer has acted reasonably and in good faith to comply with the FFCRA.  For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the DOL receives a written commitment from the employer to comply with the FFCRA in the future.

The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the rapidly-developing COVID-19 public health emergency.

If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley at (602) 792-3535 or Kylie Mote at (602) 792-3523.