LABOR DEPARTMENT GUIDANCE ON FAMILIES FIRST CORONAVIRUS RESPONSE ACT Effective April 1, 2020

The Department of Labor (“DOL”) issued preliminary guidance to employers on the recently passed Families First Coronavirus Response Act (“FFCRA”). The FFCRA brings emergency paid sick leave (“EPSL”) and expanded Family and Medical Leave Act leave (“EFMLA”) to employees for circumstances related to the COVID-19 pandemic. For background on the FFCRA view Paid Sick Leave in the Age of Coronavirus.

The DOL guidance is in the form of a Q&A and can be found here. Below are some of the more widely applicable issues employers will face.

What is the effective date of the FFCRA?
The FFCRA is effective April 1, 2020 through December 31, 2020. Although the text of the FFCRA suggested it would take effect on April 2, 2020, the DOL states employers must start providing EPSL and EFMLA on April 1, 2020. Likely, this was done to align with the calendar year quarter and the tax credit against payroll taxes provided employers who grant this leave.

How does an employer determine the number of employees it has?
The FFCRA only applies to employers with less than 500 employees. In counting employees, you must count all full and part-time employees you employ at the time the leave is to be taken. You must include temporary employees, employees on leave, jointly employed employees and day laborers. Unlike many other employment laws, this count is determined as a snapshot of an employers’ employees at the time leave is taken. FMLA’s language about counting employees over calendar workweeks in the definition of an employer does not apply to EFMLA.

What is a part-time employee for purposes of EPSL?
For EPSL, a part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week. In contrast, EFMLA 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.

An employer should document its determination of these factors. Do not, at this time, send any materials to the DOL justifying your exemption.

How does an employer determine how many EPSL or EFMLA hours to give part-time employees?
Part-time employees are entitled to leave for the average number of work hours in a two-week period. If the part-time employee is normally scheduled to work set hours, s/he receives those hours. If the normal hours scheduled are unknown, or if the part- time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take EPSL for this number of hours per day for up to a two-week period and may take EFMLA for the same number of hours per day up to ten weeks after that.

When calculating pay due to employees, must overtime hours be included?
Under EPSL, employers must only pay up to 80 hours over a two-week period. So, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week.
Under EFMLA, yes, you must include all hours an employee would have been normally scheduled to work.
Under both EPSL and EFMLA, remember the amount of pay is capped per day and in the aggregate. Additionally, the amount of pay does not need to include a premium for overtime hours under either EPST or EFMLA leave.

Can employees take 80 hours of EPSL for one purpose and another amount of EPSL for another reason?

No. The FFCRA provides employees up to two weeks of EPSL for any combination of qualifying reasons. And, the total number of hours an employee receives of EPSL is capped at 80 hours.

How does EPSL and EFMLA interact if an employee is home with a child because his or her school or place of care is closed, or childcare provider is unavailable?

An employee may use both types of leave, but only for a total of twelve weeks of paid leave. The EPST provides paid leave for the first ten workdays of EFMLA, which are otherwise unpaid unless an employee elects to use existing vacation, personal, or medical or sick leave under an employer’s existing policy. After the first ten workdays have elapsed, an employee receives EFMLA (2/3 of his/her regular rate of pay for the hours s/he would have been scheduled to work in the subsequent ten weeks). Remember: EFMLA only applies for leave to care for a child whose school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons.

Can an employer deny EPSL if it gave an employee paid leave for the reasons identified in the FFCRA prior to April 1?

No. FFCRA imposes a new leave requirement (EPSL) beginning on April 1, 2020.

Is all leave under the FMLA now paid leave?

No. The FFCRA only makes EFMLA leave that exceeds ten days paid leave. EFMLA only applies for leave to care for a child whose school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons. The first two-weeks of EMFLA are unpaid. The next 10 weeks are paid at 2/3 of the employee’s regular rate of pay for the hours the employee would have been scheduled to work.

Are EPS and EFMLA requirements retroactive?

No.

EFMLA only applies to employees who have been employed by the employer for 30 calendar days. How is that determined?

An employee who has been on your payroll for the 30 calendar days immediately prior to the day the leave would begin is entitled to EFMLA. For example, if an employee wants to take leave on April 1, 2020, s/he would need to have been on your payroll as of March 2, 2020.

Temporary employees who have been subsequently hired by you may count any days they previously worked as a temporary employee toward this 30-day eligibility period.

What records do employers need to keep when an employee takes EPSL or EFMLA?

Employees taking EPSL must provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You also should consult Internal Revenue Service (IRS) applicable forms, instructions, 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.

Employees taking EFMLA must provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions, 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.

What does it mean to be unable to work, including telework for COVID-19 related reasons?

An employee is unable to work if his/her employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.

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

Can employees take EPSL or EFMLA intermittently while teleworking?

Yes, if the employer allows it. If a teleworking employee meets the requirements for EPSL and EFMLA, you can allow the employee to use EPSL and EFMLA intermittently. Intermittent leave can be taken in any increment, provided the employer and employee agree.

Can employees take EPSL or EFMLA intermittently while working at their usual worksite?

It depends on why the employee is taking EPSL and whether you agree. EPSL must be taken in full-day increments, it cannot be intermittent, if the leave is being taken because:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• The employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Employees taking EPSL for one or more of these qualifying reasons must continue to take EPSL each day until they either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed to keep sick employees or employees caring for sick individuals from spreading the virus to others.

You can allow employees taking EPSL, and later EFMLA, to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons to take intermittent leave from their usual worksite.

If an employer closed a worksite before April 1, 2020, must an employer provide employees EPSL or EFMLA?

No. If you closed a worksite and stopped paying employees prior to April 1, 2020 (the effective date of the FFCRA), you do not have to provide EPSL or EFMLA to your employees. Your employees may, however, be eligible for unemployment insurance  benefits.

If an employer closes a worksite on or after April 1, 2020, but before an employee goes out on leave, must an employer provide employees EPSL or EFMLA?

No. If you close a worksite on or after April 1, 2020 (the effective date of the FFCRA), you do not have to provide EPSL or EFMLA to your employees. Even if an employee requested EPSL or EFMLA before you closed, you do not have to provide EPSL or EFMLA. Your employees may, however, be eligible for unemployment insurance benefits.

What happens if an employer closes a worksite while an employee is on EPSL or EFMLA?

You must pay for any EPSL or EFMLA the employee has used, but you do not have to pay EPSL or EFMLA from the date you closed going forward. Think of it like wages; you pay what they have earned by working but their wages end once you close. It does not matter whether you close your business because of a lack of work or because you are ordered to do so by a public official. Your employees may, however, be eligible for unemployment insurance benefits.

If a business stays open, but furloughs employees on or after April 1, 2020 (the effective date of the FFCRA), must the employer provide EPSL or EFMLA to the furloughed employees?

No. If you furlough employees on or after April 1, 2020 (the effective date of the FFCRA), you do not have to allow the furloughed employees to use EPSL or EFMLA. Your employees may, however, be eligible for unemployment insurance benefits.

If an employer closes a worksite on or after April 1, 2020, but tells the employees it will reopen at some time in the future, must it provide the employees EPSL or EFMLA?

No, not while the business is closed. Your employees may, however be eligible for unemployment insurance benefits. If the business reopens, the employees would be eligible for EPSL or EFMLA for qualifying leave prior to December 31, 2020. Remember:  The FFCRA expires on December 31, 2020.

Can an employee use EPSL or EFMLA to make up hours resulting from a reduced work schedule?

No. If you reduce your employees work hours because you do not have work for them to perform, you may not let them use EPSL or EFMLA for the hours they are no longer scheduled to work.

Can employees collect unemployment insurance benefits for time in which they receive EPSL or EFMLA?

Under the FFCRA, no. But, Arizona may allow these employees to receive partial unemployment insurance benefits depending on the amount of their EPSL or EFMLA pay.

What happens to health coverage for employees on EPSL or EFMLA?

Employees are entitled to continued group health coverage while on EPSL or EFMLA. Generally, an employee must continue to make any normal contributions s/he would have made if working.

Can employees use preexisting leave benefits and EPSL or EFMLA concurrently for the same hours?

No. An employee must choose which leave to use. However, you may allow an employee to supplement the amount s/he receives from EPSL or EFMLA with preexisting leave benefits, up to the employee’s normal earnings. For example, an employee receiving 2/3 of his or her normal earnings from EPSL or EFMLA may be permitted to use his or her preexisting employer-provided paid leave to get the additional 1/3 of his or her normal earnings in order to receive his or her normal earnings.

Can an employer supplement or adjust pay mandated under the FFCRA with paid leave that the employee may have under an existing paid leave policy?

No, unless your employee chooses to use existing leave you have provided. EPSL and EFMLA are new, additional benefits. Only the employee can decide to supplement his or her EPSL or EFMLA with existing paid vacation, personal, medical, or sick leave. However, you are not required to permit an employee to use existing paid leave to supplement the amount s/he receives from EPSL or EFMLA. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.

Can an employer pay employees more than they are entitled to receive for EPSL or EFMLA and claim a tax credit for the entire amount paid to them?

No. You can pay employees in excess of FFCRA requirements, but you cannot claim, and will not receive, a tax credit for any amounts in excess of the FFCRA’s statutory limits.

Do employees have a right to return to work after using ESPL or EFMLA?

Generally, yes. The FFCRA requires you to provide the same (or a nearly equivalent) job to an employee who returns to work following leave. Employers are prohibited from firing, disciplining, or otherwise discriminating against employees who take EPSL or EMPLA. Nor can employers fire, discipline, or otherwise discriminate against employees who filed any type of complaint or proceeding relating to FFCRA or have or intend to testify in any such proceeding.

Employees, however, are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave.
Employers also may refuse to return an employee to work in the same position if s/he is a highly compensated “key” employee as defined under the FMLA. Employers with less than 25 employees may refuse to return an employee to the same position who took leave to care for his/her own son or daughter whose school or place of care was closed, or whose childcare provider was unavailable, and all four of the following hardship conditions exist:

• The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
• The employer made reasonable efforts to restore the employee to the same or an equivalent position;
• The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
• The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.

Do employees who have already used some or all of their FMLA leave qualify for EPSL or EFMLA?

If eligible, an employee is entitled to EPSL regardless of how much FMLA leave they have taken previously.

Employers who were covered by FMLA prior to April 1, 2020, only need to provide a total of 12 weeks for FMLA and/or EFMLA during a 12-month period. Thus, an employee who has taken some, but not all, 12 workweeks of FMLA leave during the current 12-month period used by the employer, may take the remaining portion of leave available. If the employee already has taken 12 workweeks of FMLA leave during this 12-month period, s/he may not take additional EFMLA.

Can employees use FMLA leave over the next 12 months if they used some or all of their EFMLA leave?

It depends. Employees may take a total of 12 workweeks of leave during a 12-month period under the FMLA, whether EFMLA or traditional FMLA leave. If an employee takes some, but not all of the 12 weeks of EFMLA, by December 31, 2020, s/he may take the remaining portion of FMLA leave for a qualifying reason, as long as the total time taken does not exceed 12 workweeks in the 12-month period used by the employer.

If an employee takes EPSL, does it count against other types of paid sick leave to which employees are entitled under State or local law, or an employer’s policy?

No. EPSL is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or an employer’s existing company policy.

If an employee is absent from work using EPSL during the waiting period for an employer’s health care coverage, will the health coverage still take effect after the employee completes the waiting period?

Yes. Employees on employer-provided group health coverage are entitled to group health coverage during EPSL on the same terms as if they continued to work. Therefore, the requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if the employee continued to work, including that the days s/he is on EPSL count towards completion of the waiting period.

Can public sector employees take EPSL?

Generally, yes. Employees of the government of the United States, a State, the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar government entity are entitled to EPSL subject to the exceptions below. One, the OMB has the authority to exclude some categories of U.S. Government Executive Branch employees from taking certain kinds of EPSL. Two health care providers and emergency responders may be excluded by their employer from being able to take EPSL.

Can public sector employees take EFMLA?

It depends. In general, employees of non-federal public agencies are entitled to EFMLA. Most federal employees are not entitled to EFMLA. Further, health care providers and emergency responders may be excluded by their employer from being able to take EFMLA.

Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for EPSL?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Who is a “health care provider” who may be excluded by their employer from EPSL and/or EFMLA?

A health care provider, who can be exempted from taking EPSL and/ EFMLA, is anyone employed at any doctor’s office, hospital, health care center, clinic, post­secondary 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.

This 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 has encouraged employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

Who is an emergency responder under FFCRA?

For the purposes of employees who may be excluded from EPSL or EFMLA by their employer, an emergency responder is 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.

The DOL has encouraged employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

The employment lawyers at Mesch Clark Rothschild stand ready to help you navigate these difficult times. If we can be of assistance to you, please reach out to us.