DOL has issued additional guidance to assist employers in providing Families First Coronavirus Response Act (FFCRA) emergency sick and family leave. We previously wrote on the FFCRA on March 18, 2020 (link). Below is important information to prepare for implementation this week.

Will state or local isolation orders qualify an employee for FFCRA sick leave? It depends. Leave taken prior to April 1 regardless of the qualifying reason will not be eligible for FFCRA’s tax credit. However, if needed after April 1, an employee is eligible for qualifying leave if there is a federal, state, or local quarantine or isolation order related to COVID-19.  Please note that employees subject to a state or local shelter-in-place order, whose worksites have been closed due to the order, may not be entitled to FFCRA leave. Companies who have questions about state-specific orders should contact counsel.

Can I get a tax credit for leave taken before April 1? No. DOL guidance confirms leave will only be eligible from April 1 through December 31. 

Does an employee qualify for leave if work is shut down because of a government stop work order? No. The leave must be because of one of 6 enumerated reasons:

(1)   a federal, state, or local quarantine or isolation order related to COVID-19;

(2)   the employee has been advised by a healthcare provider to self-quarantine related to COVID-19;

(3)   the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

(4)   the employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

(5)   the employee is caring for a child whose school or place of care is closed (or the child care provider is unavailable) for reasons related to COVID-19; or

(6)   the employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

What documentation should companies request from an employee requesting leave? Employees must provide documentation in support of paid sick leave. If the employee is taking expanded family and medical leave due to caring for a child whose school is closed or child care provider is unavailable, companies may ask the employee for a notice of closure or unavailability from their child’s school or child care provider. It’s important to retain these records if businesses intend to claim a tax credit for the leave.

Additionally, DOL guidance reminds that all existing certification requirements under the Family Medical Leave Act (FMLA) remain in effect if the employee is taking leave for one of the pre-existing qualifying reasons under the FMLA. For example, if the employee is taking leave beyond the two (2) weeks of emergency paid sick leave because his/her medical condition for COVID-19-related reasons rises to the level of a serious health condition, the employee must continue to provide medical certifications if required by an employer under the FMLA.

Can an employee take leave on an intermittent basis? It depends on the employee’s work status and can be flexible depending on the arrangements made between a company and an employee.

If the employee is teleworking, he/she may take intermittent leave if a company allows for intermittent leave and if the employee is unable to telework during his/her normal schedule of hours due to one of the qualifying reasons above.

In situations other than a teleworking arrangement, paid sick leave for any reason other than care of a child must be taken in full-day increments. Once an employee begins taking paid sick leave for one or more of the qualifying reasons, the employee must continue to take paid sick leave each day until he or she either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.

Additionally, if a company and employee agree, the employee may take paid sick leave intermittently if the employee is taking paid sick leave to care for a child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19-related reasons.

How does an employer know if its employee count exceeds 500, and it is exempt from providing FFCRA leave? At the time leave is to be taken, employers should count all full-time and part-time employees within the United States, the District of Columbia, or a United States Territory. Employees on leave, temporary employees, and any employees who would be considered employees under a joint employer or integrated employer test under the Fair Labor Standards Act or FMLA should be included.

If an employee has already exhausted their FMLA leave, are they still entitled to emergency family and medical leave for a qualifying reason? No.  Eligibility for FFCRA family and medical leave depends on how much leave an employee has already taken during the relevant 12-month period for FMLA leave. Employees are only entitled to a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some, but not all, 12 workweeks of their FMLA leave during the 12-month period, they may take the remaining portion of leave available for FFCRA leave.

If the employer has less than 50 employees, is it exempt from providing leave? The business may be exempt if providing leave to an employee would “jeopardize the viability of the business as a going concern” and meets certain specific requirements. First, the leave requested must be because the child’s school or place of care is closed, or the employee’s child care provider is unavailable due to COVID-19-related reasons. The exemption is not available for other qualified sick leave reasons. Next, an authorized officer of the business must have determined one of the following conditions applies:

  • The provision of paid sick leave or expanded family and medical leave would result in the employer’s expenses and financial obligations exceeding available business revenues and cause the 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 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 their labor or services are needed for the business to operate at a minimal capacity.

Can a company supplement or adjust pay mandated under the FFCRA with paid leave that employees may have under a pre-existing paid leave policy? It depends. If an employee chooses to use existing leave, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from the employer’s paid leave policy to supplement the amount of leave the employee receives from FFCRA leave, up to the employee’s normal earnings.

Covered employers should be prepared to post DOL’s FFRCA notice by no later than April 1, 2020 and should have policies in place for employee leave.

Members of PilieroMazza’s Labor & Employment Group  are monitoring the rapidly changing COVID-19 crisis and will provide updates when more guidance is released by the government. We also invite you to visit the Firm’s COVID-19 Client Resource Center to access further resources that will help businesses navigate the effects of the COVID-19 pandemic.