The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
Effective April 1, 2020, under FFCRA, an employee at a business with fewer than 500 employees is entitled to take leave related to COVID-19 if the employee is unable to work because he or she:
- Is subject to a federal, state or local quarantine or isolation order related to COVID-19.
- Has been advised by a health care provider to self-quarantine related to COVID-19.
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
- Is caring for an individual subject to a quarantine or isolation order.
- Is caring for his or her child whose school or place of care is closed or unavailable due to coronavirus-related reasons.
- Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services (HHS). The HHS has not specified any other substantially similar condition as of yet.
The United States Department of Labor (“U.S. DOL”) issued temporary regulations for the Families First Coronavirus Response Act (FFCRA) on April 1, 2020, which can be found here:
These regulations confirmed that employees must give notice to their employers of the need to take leave and provide documentation to support paid sick leave and emergency family and medical leave.
The U.S. DOL has also issued helpful Q&As on the FFCRA. On March 28, 2020, those Q&As have been updated for the third time. The full version of the Q&As can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. While we recommend employers read through the full version of the Q&As, especially the new Q&As numbered 38-59, some notable revisions and clarifications, are as follows.
Q & A
Q: Can employers terminate employees who are taking COVID Paid Sick Leave or COVID FMLA? (See Question #43)
A: Generally, no, because employees taking such time off have a right to return to their same position or an equivalent one. However, the DOL clarifies that employers may terminate employees as long as the termination is for “legitimate business reasons, such as the closure of [the employer’s] worksite.” Importantly, the DOL makes it clear that the responsibility will be on the employer “to demonstrate that [the employee] would have been laid off even if [the employee] had not taken leave.” Employers should be sure to document legitimate business decisions.
Q: What are the consequences of an employer not complying with FFCRA? (See Questions #41 and #42)
A: An employee may file a complaint with the DOL’s Wage and Hour Division or a civil lawsuit.
Q: What if the employee who is taking COVID Paid Sick Leave or COVID FMLA is a highly compensated “key employee” as defined by the FMLA? Do you have to hold his/her job? (See Question #43)
A: The U.S. DOL states that an employer may refuse to return a highly compensated key employee, as defined under the FMLA, to his/her prior position if the leave was to care for the employee’s own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist: (a) 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 the leave; (b) the employer made reasonable efforts to restore the employee to the same or an equivalent position; (c) the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and (d) 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 the leave began, whichever is earlier.
Q: What if I have fewer than 25 employees? Do I have to return employees who take COVID Paid Sick Leave or COVID FMLA back to work? (See Question #44)
A: The same analysis would apply as outlined in the answer for “key” employees.
Q: What if an employee has already used up all of his/her FMLA leave prior to needing leave for a COVID-qualifying reason? (See Question #44)
A: The DOL states that if an employee has already taken 12 weeks of FMLA during the applicable 12 month period, an employee may not take additional COVID FMLA time. If, however, an employee had previously taken only a portion of the 12 weeks, they will be entitled to take the remaining period of time for COVID FMLA. Question #44 provides examples.
Q: Similarly, if an employee takes some COVID FMLA time, but not the full 12 weeks, will he/she still be able to take more FMLA time off during the rest of the 12 month period for another qualifying reason? (See Question #45)
A: Yes. The answer to Question #45 states that COVID Paid Sick Leave does not count towards the 12 weeks during the 12 month period, indicating that there could be some scenarios where employees receive 14 weeks of FFCRA benefits. Examples are provided.
Q: If an employee takes COVID Paid Sick Leave, does that count against other types of paid sick leave to which the employee is entitled under state or local law or an employer’s policy? (See Question #46)
A: No. COVID Paid Sick Leave is in addition to other paid sick leave.
Q: For COVID Paid Sick Leave, who is a “healthcare provider” for purposes of determining whether individuals qualify under the self-quarantine reason? (See Question #55)
A: The DOL states that the term “health care provider” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
Q: Does the COVID Paid Sick Leave time off apply towards an employee’s waiting period for purposes of starting health care coverage? (See Question #51)
A: Yes. Employees who have elected health coverage, but need to go out on COVID Paid Sick Leave during the waiting period, are treated as if they had continued to work.
Q: Is there anything new I should know about how to count the 500 employees? (See Questions #38, #39 and #50)
A: Yes. Question #50 clarifies that the number of employees should be counted “on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees” under FFCRA. Questions #38 and #39 seem to reiterate what the DOL has previously provided on “joint employers” (and refer back to Question #2, which we have reported on in a prior e-alert).
Q: Are employees who are “health care providers” exempt from COVID Paid Sick Leave and COVID FMLA? If so, how do I know if my employees are “health care providers”? (See Question #56)
A: An employer may elect to exclude health care providers, who, for this purpose under the FFCRA are employees who are employed in a wide variety of medical settings. For further guidance on this, including a listing of all medical settings that are affected, please refer to the entire Question.
Q: What about “emergency responders”? Are they exempted too? (See Question #57)
A: An employer may elect to exclude emergency responders, who are defined as employees 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 provision also applies to a wide array of emergency responders, enumerated in the Question. For further guidance on this, please refer to the entire Question.
Q: Are employees entitled to leave for hours they are not scheduled to work?
A: The new guidance confirms that if an employer’s business closes, no matter how short the duration, its employees are not entitled to leave during the period of the closure. Likewise, employees who are furloughed or whose hours are reduced by their employer for business or operational reasons are not entitled to paid sick leave or expanded FMLA leave or any hours that they would not otherwise work due to the furlough or reduction in hours.
Q: Can FFCRA leave be used intermittently?
A: The DOL’s new guidance clarifies that employees may use leave under the FFCRA intermittently in some circumstances, but only with their employer’s agreement. Subject to their employer’s agreement, an employee may use leave intermittently to care for a child whose school or place of care is closed due to COVID-19. Employees may also use leave intermittently while teleworking – again, only if their employer agrees. Intermittent leave is not permitted if an employee is not permitted to telework and is taking leave under the FFCRA for reasons other than caring for a child whose school or place of care is closed due to COVID-19.
If an employee is teleworking, intermittent leave can be taken in any increment that the employer and employee agree upon. If the employee must report to a worksite, intermittent leave must be taken in full day increments.