And the Beat Goes On… DOL Publishes Second and Third Round of FAQs on FFCRA Answering Burning Employer QuestionsThe DOL is clearly plugged in to the issues and questions employers are running into as everyone plans to give notice of and grant paid leave under the Families First Coronavirus Response Act (FFCRA). The DOL’s first round of FAQs (published on March 24, 2020) focused on how to determine if an employer meets the “fewer than 500 employees” threshold and leave calculations.  The latest rounds of FAQs (published on March 26, 2020, and March 28, 2020) address the practical issues involved with administering leave under the FFCRA IRL (in real life). We are highlighting some of the FAQs that seem to be most pertinent but here is the complete list of FAQs.

Can You Require Documentation? (FAQs # 15-16)

Many of you have very reasonably asked whether you can require employees requesting FFCRA leave to submit documentation supporting the need for leave. The DOL says yes you can, and you should if you intend to claim the tax credit. If an employee takes paid leave under the Emergency Paid Sick Leave Act (EPSL) or under the Emergency Family and Medical Leave Expansion Act (EFMLA), you must require employees to provide appropriate documentation including the qualifying reason for leave, statement that the employee is unable to work or telework for that reason, and the dates for which leave is requested.

Appropriate documentation includes:

  • A copy of the federal, state or local quarantine or isolation order related to COVID-19.
  • Written documentation by a healthcare provider advising the employee to self-quarantine due to concerns related to COVID-19.
  • 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 child care provider to show the school or place of care is closed due to COVID-19.

You should retain documentation provided by employees in your records if you intend to claim a tax credit under the FFCRA.

What Does “Telework” Mean? (FAQs # 17-19)

Telework is work performed from home or at a location other than an employee’s normal workplace. The FAQs explain that an employee is unable to “work or telework” if the employer has work and one of the COVID-19 qualifying reasons prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or under alternative circumstances at an alternative location. If an employer allows teleworking and an employee is unable to perform teleworking tasks or work the required teleworking hours because of one of the qualifying reasons for EPSL or because the employee needs to care for a child whose school or place of care is closed because of COVID-19 related reasons, the employee is entitled to take paid sick leave.  The DOL seems to indicate that whether an employee can telework is a joint decision to be made between the employee and the employer.

Can Employees Take Intermittent Leave? (FAQs # 20-22)

The DOL provides guidance for intermittent leave under two distinct situations: (1) employees who are teleworking; and (2) employees who are working onsite.

Generally, employees must take EPSL leave in full-day increments to accomplish the intent of FFCRA to provide paid sick leave as necessary to stop the spread of the virus. The suggestion is that if you are sick or are caring for someone who is sick, you cannot work.

Employees Working at the Usual Worksite:

For employees working at their usual worksite who qualify for paid sick leave for any reason other than to care for a child whose school or daycare is closed, they must take paid sick leave continuously and in full day increments until paid leave is exhausted or the qualifying reason ends.

So, if an employee working at the usual worksite is taking leave for any of the following reasons, they cannot take it intermittently:

  1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. 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 healthcare provider to self-quarantine due to concerns related to COVID-19; or
  5. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

An employee working at their usual worksite may be able to take EFMLA leave intermittently. Recall EFMLA leave is only available to care for a child whose school or daycare is closed. For this leave, you have to agree to allow intermittent leave, and you and your employee need to agree on a schedule.

Teleworking Employees:

If an employee is teleworking, he or she can take intermittent leave in increments of less than a full day if you allow it.

If you permit exempt teleworkers to take intermittent leave be careful to closely track when exempt employees are working and when they are using EPSL or EFMLA. You must also ensure exempt employees do not drop below a weekly salary threshold of $684. So, you can grant them the paid FFCRA leave but you may still need to supplement the weekly pay to be sure their salary is not reduced. You can claim only the amount of the paid FFCRA benefit in the tax credit.

Closed Worksites, Furloughs and Reduced Hours (FAQs # 23-31)

The DOL unequivocally states that if an employee’s worksite closes either before or after April 1, 2020, regardless of whether the employer does so for lack of business or because it is required to close pursuant to a federal, state or local directive, employees cannot take either EPSL or EFMLA leave. Employees who are sent home and stop receiving pay because the employer does not have work for them can apply for unemployment insurance benefits. As we have noted before, many states are relaxing unemployment benefits eligibility and applications, so check your state’s requirements.

Even if an employer closes a worksite while an employee is on EPSL or EFMLA leave, you are only required to pay for leave used before the closure. As of the closure date, the employee is no longer entitled to EPSL or EFMLA pay but may be entitled to unemployment insurance benefits.

The DOL states, “If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work.”

If an employer remains open but places employees on furlough due to lack of business, furloughed employees are not eligible for paid leave under either EPSL or EFMLA. Also, if an employer reduces an employee’s work hours because it does not have enough work, the employee may not use EPSL or EFMLA for the hours they are no longer scheduled to work because they are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. In such a case, the employee may qualify for partial unemployment benefits.

Employees who receive paid leave under EPSL or EFMLA are not eligible for unemployment insurance benefits. No double dipping.

Can Employees Supplement FFCRA Paid Leave with PTO? (FAQs # 32-34)

An employee who wants to supplement any lost pay they receive under either EPSL or EFMLA, with preexisting leave entitlements, may do so only if the employer agrees.

However, you cannot require an employee to supplement EPSL or EFMLA pay with preexisting leave.

Even if both you and your employee agree to supplement, you cannot claim or receive a tax credit for the supplemental amounts – only up to the caps.

Multiemployer Collective Bargaining Agreements (FAQs #35-37)

Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee or by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

Exceptions for Healthcare Providers and Emergency Responders (FAQs # 56-57)

FAQ #36 notes that if you employ a healthcare provider (HCP) or an emergency responder, “you are not required to pay such employee paid sick leave or expanded family and medical leave on a case-by-case basis.” In providing guidance on who is a “healthcare provider” who can be denied paid leave, FAQ #56 defines it much more broadly than the traditional FMLA. Instead, for the exception an HCP 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”

Moreover, the definition explicitly 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.” Employees providing medical services, producing medical products, or who are “otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments” are also covered (and thus potentially excluded from FFCRA leave).

An emergency responder is also broadly defined to include those who are “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.” It also explicitly includes the military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, 911 operators, and others.

If you need an HCP or emergency responder to work, you can deny them any paid FFCRA leave. To minimize the spread of COVID-19, the DOL encourages employers to use this exception judiciously.

What About the Small Business Exemption? (FAQ #58-59)

Many small companies who have never been FMLA-covered employers have been looking for guidance on the small business exemption. The latest guidance suggests that this is not an “all or nothing” exemption and must be assessed based on the employee who is requesting the leave.  Specifically, you are exempt from mandated paid leave only if:

  1. You employ fewer than 50 employees;
  2. Your employee requests leave because a child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  3. An authorized officer of your business has determined that (a) providing paid leave would result in your “business’s expenses and financial obligations exceeding available business revenues” and cause you to cease operating at a minimal capacity; (b) the absence of the employee requesting the leave would “entail a substantial risk to the financial health or operational capabilities” of your business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or (c) you will not be able to find someone who can perform the employee’s job and the labor or services “are needed for the small business to operate at a minimal capacity.”

Take note that small businesses are not exempt from providing paid EPSL for reasons other than taking care of a child whose school or daycare is closed. Additionally, the original FAQ #4 noted that you are not to send any materials to the DOL seeking this exemption. Instead, you will make the decision, and it will be challenged later (so keep good records to support it).

Conclusion (for Now)

In summary, the DOL answered some of our burning questions, and we now know that:

  • You can and should require employees to submit appropriate documentation to verify the need for EPSL and EFMLA leave;
  • If you agree to it, teleworking employees can take intermittent leave in increments of less than a day for any of the EPSL or EFMLA qualifying reasons;
  • Employees working at the usual worksite who qualify for EPSL leave for any reason other than child care, must take the leave continuously in full day increments;
  • If you agree to it, employees on extended EFMLA leave may take intermittent leave either for telework or onsite work;
  • Employees on furlough or temporary layoff are not eligible for EPSL or EFMLA leave regardless of whether the furlough or temporary layoff occurred before or after April 1, 2020;
  • Employees are not entitled to supplement EPSL or EFMLA pay with preexisting PTO or vacation unless you agree, and if you do agree, you will not receive a tax credit for the supplemental amounts;
  • If you employ healthcare providers (broadly defined to include anyone who works for a healthcare provider and more), you can deny requested leave; and
  • You make the decision about the small business exemption on a case-by-case basis and defend it later

It appears the DOL is working as hard as we all are at trying to parse out the requirements of the FFCRA, and the newest FAQs provide welcome clarification for employers.