COVID-19: DOL Issues Additional Clarifications re FFCRA – Helpful Information for Employers!

The Department of Labor has issued some additional clarifications for employers relating to the FFCRA including information regarding health care provider and small business exemptions, whether expanded FMLA and paid sick leave have to be paid when a business is shut down or an employee is furloughed, etc. Highlights are discussed below. For the complete list of clarifications see: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Can I ask for proof of school closure if employee seeks emergency FMLA or paid sick leave for that reason?

Yes.

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

The employee is unable to work if the 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 your normal worksite or by means of telework. If the employee and employer agree that the employee will work the employee’s normal number of hours, but outside of the employee’s 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 an employee take paid sick leave or expanded family and medical leave intermittently while teleworking?

Yes. The employee may take intermittent leave in any increment, provided that the employee and employer agree. For example, if they agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

Can an employee take expanded family and medical leave intermittently while their child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking?

Yes, but only with the employer’s permission. Intermittent expanded family and medical leave should be permitted only when employee and employer agree upon such a schedule. For example, if the employer and employee agree, the employee may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while their child is at home because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of the leave.

If the employer closed the worksite before April 1, 2020 (the effective date of the FFCRA), can the employee still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, the employer sent the employee home and stops paying the employee because it does not have work for the employee to do, the employee will not get paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. It should be noted, however, that if the employer is paying the employee pursuant to a paid leave policy or State or local requirements, the employee is not eligible for unemployment insurance.

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but before the employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave?

No. If the employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits. This is true whether your employer closes the worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If the employer closes the worksite while the employee is on paid sick leave or expanded family and medical leave, what happens?

If the employer closes while the employee is on paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave the employee used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave, but may be eligible for unemployment insurance benefits.

If the employer is open, but furloughs the employee on or after April 1, 2020 (the effective date of the FFCRA), does the employee receive paid sick leave or expanded family and medical leave?

No. If the employer furloughs the employee because it does not have enough work or business for the employee, the employee is not entitled to then take paid sick leave or expanded family and medical leave. However, the employee may be eligible for unemployment insurance benefits.

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells the employee that it will reopen at some time in the future, does the employee receive paid sick leave or expanded family and medical leave?

No, not while the worksite is closed. If the employer closes the worksite, even for a short period of time, the employee is not entitled to take paid sick leave or expanded family and medical leave. However, the employee may be eligible for unemployment insurance benefits. If the employer reopens and the employee resumes work, the employee would then be eligible for paid sick leave or expanded family and medical leave as warranted.

If the employer reduces the employee’s scheduled work hours, can the employee use paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work?

No. If the employer reduces the employee’s work hours because it does not have work for the employee to perform, the employee may not use paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the employee’s reduction in hours was somehow related to COVID-19. The employee may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working their full schedule. If the employee does, the amount of leave to which the employee is entitled is computed based on the employee’s work schedule before it was reduced.

If the employee elects to take paid sick leave or expanded family and medical leave, must the employer continue the employee’s health coverage? If the employee remains on leave beyond the maximum period of expanded family and medical leave, does the employee have a right to keep their health coverage?

If the employer provides group health coverage that the employee has elected, the employee is entitled to continued group health coverage during the expanded family and medical leave on the same terms as if the employee continued to work. If the employee is enrolled in family coverage, the employer must maintain coverage during the expanded family and medical leave. The employee generally must continue to make any normal contributions to the cost of the employee’s health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.

Can an employee use the employer’s preexisting leave entitlements and the FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?

No. The employee may not simultaneously take both, unless the employer agrees to allow the employee to supplement the amount the employee receives from paid sick leave or expanded family and medical leave under the FFCRA, up to normal earnings, with preexisting leave. For example, if the employee is receiving 2/3 of normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and the employer permits, the employee may use preexisting employer-provided paid leave to get the additional 1/3 of normal earnings so that the employee receives full normal earnings for each hour.

If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under the FFCRA.

If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

No. It is up to the employee.

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?

You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.

Is there a difference in eligibility for employees to receive expanded paid sick leave versus FMLA?

There is one difference regarding an employee’s eligibility for paid sick leave versus expanded family and medical leave. While your employee is eligible for paid sick leave regardless of length of employment, your employee must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. For example, if your employee requests expanded family and medical leave on April 10, 2020, he or she must have been your employee since March 11, 2020.

Who is a son or daughter with respect to school closure issues?

Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. A “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Can an employee use expanded FMLA if they have already used some or all of leave under the regular Family and Medical Leave Act (FMLA)?

If the employer was covered by the FMLA prior to April 1, 2020, the employee’s eligibility for expanded family and medical leave depends on how much leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. The employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If the employee has taken some, but not all, 12 workweeks of leave under FMLA during the current 12-month period determined by the employer, the employee may take the remaining portion of leave available. If the employee has already taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded family and medical leave.

For example, assume the employee is eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. The employee therefore has 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, the employee would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave the employee takes would count against their entitlement to preexisting FMLA leave.

If the employer only becomes covered under the FMLA on April 1, 2020, this analysis does not apply.

However, an employee is entitled to expanded paid sick leave regardless of how much leave the employee has taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if the employee takes paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.

If the employee takes paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which the employee is entitled under State or local law, or my employer’s policy?

No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law or the employer’s existing company policy.

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 paid sick leave?

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 paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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.

To minimize the spread of the virus associated with COVID-19, the Department of Labor encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

1. 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;
2. 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
3. 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.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

• employer employs fewer than 50 employees;
• leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
• an authorized officer of the business has determined that at least one of the three conditions described above is satisfied.

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288