The new paid leave law becomes effective on Wednesday, April 1, 2020.
On Thursday, March 26, and then again yesterday, March 29, the United States Department of Labor (DOL) issued two additional rounds of guidance interpreting the Families First Coronavirus Response Act (FFCRA), which was signed into law less than two weeks ago and will become effective on April 1. To date, the guidance released by DOL has taken the form of an ever-expanding list of questions and answers posted here. The DOL added questions 15 through 37 on Thursday and questions 38 through 59 on Sunday.
The new DOL guidance answered a number of questions regarding the rights and responsibilities of employers and employees. Issues addressed in the guidance that are particularly noteworthy for employers include:
Records and Documentation: The DOL guidance indicates that an employee requesting leave under the FFCRA must provide his or her employer with appropriate documentation upon request supporting the qualifying reason for leave. An employee must provide his or her employer documentation in support of leave provided under the Emergency Paid Sick Leave Act "as specified in applicable Internal Revenue Service (IRS) forms, instructions, and information." Moreover, employees requesting leave to care for a child whose school or childcare provider is closed for reasons related to COVID-19, can provide documentation including a copy of a notice posted on a government, school or daycare website, or an email from an employee or official of the school or place of care. For FMLA leave related to sickness, the DOL guidance specifically notes that "all existing certification requirements
under the FMLA remain in effect."
The guidance also provides that if an employer intends to seek tax credits for providing paid leave under the FFCRA, the employer should retain all documentation provided by employees supporting their reasons for requesting leave. It further recommends that employers "consult IRS applicable forms, instruction, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit," and reminds employers that they are not required to provide leave "if materials sufficient to support the applicable tax credit have not been provided."
Intermittent Leave: The DOL guidance indicates that employers and employees may agree to an employee’s intermittent use of paid leave provided for under the FFCRA in many circumstances. If an employee is teleworking, the employer and employee may agree to intermittent leave for any covered reason. However, for employees who are working at their usual worksite (i.e., on the employer’s premises), intermittent leave only may be used when an employee takes leave to take care of a child because of a school closure or childcare unavailability, and again, only if the employer and employee agree. Employees taking emergency paid sick leave for any of the other qualifying reasons set forth in the FFCRA must take such leave in full-day increments. This is because the paid leave provisions of the FFCRA are designed to prevent employees who may be sick from spreading the virus to
others on an employer’s premises.
Closure of Employer’s Worksite Eliminates Entitlements Under FFCRA. Over the course of several questions and answers, the DOL guidance specifically provides that if an employer’s worksite is closed, employees will not be entitled to receive or continue receiving leave under the FFCRA. This is so regardless of whether the closure in question occurs before or after April 1, whether an employee is on leave when the closure occurs, or whether an employee is furloughed. Likewise, it will not matter whether an employer closes because of economic reasons or because of a federal, state or local governmental order. In any such circumstance, an employee may not avail himself or herself of any type of paid leave under the FFCRA, but may apply for unemployment benefits.
Importantly, while it did not address the question directly, the DOL guidance strongly suggests that employees who are subject to a state or local shelter-in-place or business closure order (for instance, Ohio’s "stay at home" order) will not be eligible to take emergency paid sick leave under the FFCRA.
No Unemployment Benefits While on Paid Leave. Per the DOL guidance, an employee receiving paid leave pursuant to the FFCRA generally may not also collect unemployment benefits for the same period of time.
Employers May Not Require Employees to Use Existing Paid Leave During FFCRA Leave. Unless an employer and employee agree, the employer cannot require an employee to use previously existing paid leave at the same time as leave under the FFCRA. Likewise, an employee may not use previously existing paid leave to address the deficit created by receiving two-thirds of their regular rate during FFCRA leave unless the employer and employee agree to do so. While this supplementation of an employee’s pay while on FFCRA leave is permitted if the employer and employee agree, the DOL guidance specifically indicates that this additional payment on top of the pay mandated by the FFCRA is not eligible for tax credits.
Use of Leave Under FFCRA After Previous Use of FMLA Leave. The DOL guidance clarifies that an employee is entitled to take emergency paid sick leave under the FFCRA regardless of how much leave the employee has previously taken under the Family and Medical Leave Act (FMLA). However, an employee’s eligibility for expanded family and medical leave under the FFCRA depends on how much leave the employee used during the 12-month period as calculated by the employer for FMLA leave calculation purposes. If an employee has already taken some, but not all, of his or her FMLA leave, the employee is entitled to take the remaining available portion of FMLA leave. If an employee has already used his or her entire 12 weeks of FMLA leave, he or she may not take additional expanded family and medical leave under the FFCRA.
Small Business Exemption. The DOL clarifies that some small businesses with fewer than 50 employees will be exempt from providing certain paid sick leave and expanded family and medical leave under the FFCRA if providing such leave would "jeopardize the viability of the business as a going concern." Under the guidance, a small business would be permitted to claim such an exemption if an "authorized officer" of the business determined that:
- 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;
- 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
- 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.
Even after these two most recent rounds of guidance, employers should stay tuned; there remain many unanswered questions about the application of the FFCRA. The DOL still may issue additional clarification prior to this coming Wednesday, April 1, the FFCRA’s effective date. We will continue to provide updates should the DOL issue further guidance. Please contact a member of Calfee’s Labor and Employment Practice Group with any questions or to discuss how to navigate this significant and complicated new law.
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