DOL Provides Further FFCRA Guidance
Senior Compliance Attorney
On April 1, 2020, the Department of Labor issued temporary regulations to interpret the paid leave provisions of the Families First Coronavirus Response Act (FFCRA). In general, the FFCRA includes the Employee Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Both acts provide paid time off for employees in response to the COVID-19 pandemic. These regulations are in effect from April 1, 2020-December 31, 2020.
The important clarifications the temporary regulations provided are outlined below.
GENERAL FFCRA PROVISIONS
The following are clarifications from the DOL to help employers understand how to implement specific provisions or gain better clarity around definitions from the law.
- Private employers. Any private entity or individual (including non-profit and church entities) who employs fewer than 500 employees. The following employees are counted:
- All full-time and part-time employees, regardless of length of service or whether they are on leave.
- Employees of temporary placement agencies who are jointly employed regardless of payroll the employees appear on.
- Day laborers supplied by a temporary placement agency.
- Does not include: independent contractors, employees who have been laid off or furloughed if not re-employed.
All employed employees including all common employees of joint employers or all employees of integrated employers must be counted together. A corporation including its separate establishments or divisions is considered a single employer and all employees must be counted. Two or more entities with common ownership are separate employers unless they meet the integrated employer test under FMLA.
- Public employers of any size.
Small Employer Exemption
Employers with fewer than 50 employees (small businesses) are exempt from providing FFCRA paid leave to care for a child due to school or provider closures due to COVID-19 concerns when the imposition of such requirements would jeopardize the viability of the business as a going concern. An authorized officer of the business must determine that:
- FFCRA 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;
- The absence of the employee or employees requesting FFCRA 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 FFCRA leave and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this small business exemption, the employer must document that a determination has been made pursuant to the criteria set forth in the regulations ( § 826.40(b)(1). Documentation should not be sent to the DOL. Employers claiming the exemption should retain the documentation in its files. Small employers are still required to provide EPSLA leave for COVID-19 reasons.
Regardless of whether a small employer chooses to exempt one or more employees, the employer is still required to post a notice.
Health Care Provider And Emergency Responder Exemption
Certain “health care providers” and “emergency responders” can be excluded from both paid leave provisions of the FFCRA by the employer of these employees. Please note that this is not a blanket exemption for employers.
- Health care provider – 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 definition includes any individual employed by an entity that contracts with any of these institutions to provide services or to maintain the operation of the facility where that individual’s services support 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.
This definition applies only for the purpose of determining whether an employer may elect to exclude an employee from taking paid leave under the FFCRA.
- Emergency responders – anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to 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, child welfare workers and service providers, 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 whom 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.
FFCRA leave may be taken intermittently if both the employer and the employee agree. The agreement does not need to be in writing as long as there is a clear and mutual understanding between the parties.
- Worksite – Available depending on the reason for leave.
- To care for a child if the school or place of care is closed or child care provider is unavailable: may be taken in any increment of time agreed to by the employer and employee
- COVID-19 health reasons: may NOT be taken intermittently. Once the employee begins taking EPSLA leave for one or more of such reasons, the employee must use the permitted days of leave consecutively until the employee no longer has a qualifying reason to take EPSLA.
- Teleworking – If the employer directs or allows an employee to telework, or the employee normally works from home, the employer and employee may agree that the employee may take EPSLA or EFMLEA leave intermittently in any agreed increment of time (but only when the employee is unavailable to telework because of a COVID–19 related reason).
Only the amount of leave actually taken may be counted toward the employee’s leave entitlements. For example, an employee who normally works forty hours in a workweek only takes three hours of leave each work day (for a weekly total of fifteen hours) has only taken fifteen hours of EPSLA or 37.5% of a workweek of the EFMLEA.
EMPLOYER POSTING REQUIREMENTS
Every employer covered by FFCRA’s paid leave provisions is required to post and keep posted on its premises, in conspicuous places a notice explaining the FFCRA’s paid leave provisions and providing information concerning the procedures for filing complaints of violations of the FFCRA with the DOL’s Wage and Hour Division.
An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
Employers may duplicate the text of the DOL’s model notice (WHD 1422 REV 03/20) or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice. Prototypes are available at https://www.dol.gov/.
Notices need not be translated, but a Spanish version is available.
Employers may require employees to follow reasonable notice procedures after the first workday for which an employee takes leave. Employees should notify employers about the request for FFCRA leave as soon as practicable. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
For child care related leaves, if the leave was foreseeable, an employee should provide the employer with notice of such leave as soon as practicable. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an employee takes FFCRA leave. After the first workday, it will be reasonable for an employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.
Generally, it will be reasonable for an employer to require oral notice and sufficient information for an FFCRA leave. It will also be reasonable for the employer to require the employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
An employee is required to provide the employer documentation containing the following information prior to taking FFCRA leave:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
An employee must additionally provide the employer with the name of the government entity that issued the quarantine or isolation order OR the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID–19. (EPSLA only)
For childcare related reasons the employee must provide:
- The name of the son or daughter being cared for;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or expanded family and medical leave.
The employer may also request an employee to provide such additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
HEALTH CARE COVERAGE
Employers must maintain employee coverage under any group health plan while on FFCRA leave under the same terms and conditions as if the employee would have been continuously employed.
The term ‘‘group health plan’’ has the same meaning as under the Family Medical Leave Act (FMLA). The same group health plan benefits provided to an employee prior to taking FFCRA leave must be maintained while an employee is taking FFCRA leave.
Employees remain responsible for paying the portion of group health plan premiums which had been paid by the employee prior to taking FFCRA leave. If premiums are raised or lowered, the employee would be required to pay the new employee premium contribution on the same terms as other employees. The employee’s share of premiums must be paid by the method normally used during any paid leave, presumably as a payroll deduction. If leave is unpaid, or the employee’s pay during leave is insufficient to cover the employee’s share of the premiums, the employer may obtain payment from the employee.
An employee may choose not to retain group health plan coverage while an employee is taking FFCRA leave. When an employee returns from leave, the employee is entitled to be reinstated on the same terms as prior to taking the leave, including family or dependent coverages, without any additional qualifying period, physical examination, exclusion of pre-existing conditions, etc.
An employer is required to retain all documentation provided pursuant to FFCRA for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support his or her request for FFCRA leave, the employer is required to document and maintain such information in its records for four years.
An employer that denies an employee’s request for FFCRA leave must document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for four years.
For tax credits, an employer is advised to maintain the following records for four years:
- Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, paid sick leave, and expanded family and medical leave;
- Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
- Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
- Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third-party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
- Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
EPSLA SPECIFIC GUIDANCE
The following are clarifications from the DOL to help employers understand how to implement specific provisions of the EPSLA or gain better clarity around certain definitions from the law.
All employees – The regulations confirm that EPSLA is available to employees for the following reasons which cause an employee to be unable to work:
- 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 medical diagnosis from a health care provider;
- The employee is caring for an individual who is subject to an order as described in #1 or #2;
- The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID–19; or
- The employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor. The substantially similar condition may be defined at any point during the effective period
The following items are clarifications of definitions within the EPSLA.
- Subject to a quarantine or isolation order – A quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.
- Caring for an ‘‘individual’’ – this means an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined. ‘‘Individual’’ does not include persons with whom the Employee has no personal relationship.
- Telework – Telework is work the employer permits or allows an employee to perform while the employee is at home or at a location other than the employee’s normal workplace. An employee is able to Telework if:
- His or her employer has work for the employee;
- the employer permits the employee to work from the employee’s location; and
- there are not extenuating circumstances (such as serious COVID–19 symptoms) that prevent the employee from performing that work.
Telework may be performed during normal hours or at other times agreed by the employer and employee. Telework is work for which wages must be paid as required by applicable law and is not compensated as paid leave under the EPSLA or the EFMLEA.
Amount of EPSLA
The following helps to explain the amount of leave employees are eligible for:
Full-time employees (normally scheduled at least 40 hours per week) – eligible for up to 80 hours of paid sick leave .
- An employee who does not have a normal weekly schedule under is considered to be a full- time employee if the average number of hours per workweek that the employee was scheduled to work, including hours for which the employee took leave of any type, is at least 40 hours per workweek over a period of time that is the lesser of:
- The six-month period ending on the date on which the employee takes paid sick leave; or
- The entire period of the employee’s employment.
Part-time Employees – eligible for up to the amount of scheduled hours over two workweeks.
- For a part-time employee who lacks a normal weekly schedule, the number of hours of paid sick leave to which the employee is entitled is calculated as follows:
- If the part-time employee has been employed for at least six months, the employee is entitled to up to the number of hours of paid sick leave equal to fourteen times the average number of hours that the employee was scheduled to work each calendar day over the six-month period ending on the date on which the employee takes paid sick leave, including any hours for which the employee took leave of any type.
- If the part-time employee has been employed for fewer than six months, the employee is entitled to up to the number of hours of paid sick leave equal to fourteen times the number of hours the employee and the employer agreed to at the time of hiring that the employee would work, on average, each calendar day. If there is no such agreement, the employee is entitled to up to the number of hours of paid sick leave equal to fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.
Amount of Pay for Paid Sick Leave
- Reasons #1-#3 – Employer shall pay the higher of the employee’s average regular rate as computed under § 826.25 OR the federal minimum wage to which the employee is entitled; or any state or local minimum wage to which the employee is entitled.
- Reasons #4-6 – Employer shall pay the employee two- thirds of the amount outlined for reasons #1-#3.
The paid sick leave includes the following monetary caps:
- $511/day or $5,110 in aggregate for Reasons #1-#3;
- $200/day or $2,000 in aggregate for Reasons #4-#6
IMPORTANT: An employee may not take paid sick leave unless the employee would be able to perform work for his or her employer, either at the employee’s normal workplace or by telework. An employee may not take paid sick leave where the employer does not have work for the employee.
EFMLEA SPECIFIC GUIDANCE
The following are clarifications from the DOL to help employers understand how to implement specific provisions of the EFMLEA or provide clarity around certain definitions from the law:
Eligible Employees: Employees employed for at least thirty calendar days, regardless of eligibility requirements under standard FMLA.
An employee is employed for thirty calendar days if:
- the employee is on the employer’s payroll for the thirty calendar days immediately prior to the day that the employee’s leave would begin; or
- The employee was laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or otherwise reemployed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off or otherwise terminated.
If an employee employed by a temporary placement agency is subsequently hired by the employer, the employer will count the days worked as a temporary employee at the employer toward the thirty-day eligibility period.
The regulations confirm that EPSLA is available to employees for the following reasons which cause an employee to be unable to work:
- The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID–19;
Employees have need for EFMLEA leave only if no other suitable person is available to care for the son or daughter during the leave.
Amount of EFMLEA
Employees are entitled up to twelve workweeks of EFMLEA. Any EFMLEA leave is counted toward the twelve workweeks of regular FMLA leave to which an employee is entitled to for any qualifying reason in a 12-month period.
Amount of Pay for EFMLEA
After the initial two weeks of EFMLEA, employers must pay the employee two-thirds of the employee’s average regular rate times the employee’s scheduled number of hours for each day of leave taken.
The leave includes the following monetary caps:
- $200/day or $10,000 in aggregate per employee
“Scheduled number of hours”
- If the employee has a normal work schedule, the number of hours the employee is normally scheduled to work on that workday;
- If the employee has a work schedule that varies to such an extent that an employer is unable to determine the number of hours the employee would have worked on the day for which leave is taken:
- Employed for at least six months – the average number of hours the employee was scheduled to work each workday, over the six-month period ending on the date on which the employee first takes expanded family and medical leave, including hours for which the employee took leave of any type; or
- Employed for fewer than six months – the average number of hours the employee and the employer agreed at the time of hiring that the employee would work each workday. If there is no such agreement, the scheduled number of hours is equal to the average number of hours per workday that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.
Use of employer paid vacation or person leave
If an employee elects or is required to use leave under the employer’s policies, concurrently with EFMLEA, the employer must pay the employee a full day’s pay for that day. However, the employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits.
Employers can only REQUIRE use of PTO or other employer paid leaves when the employee is taking EFMLEA for daycare/place of care closings.
“Regular Rate” for commissioned or tipped employees
An employee’s commissions, tips, and piece rates are incorporated into the regular rate for purposes of the FFCRA to the same extent that they are included in the calculation of the regular rate under the FLSA.
IMPORTANT: An employee may not take EFMLEA leave unless the employee would be able to perform work for his or her employer, either at the employee’s normal workplace or by Telework. An employee may not take EFMLEA leave where the employer does not have work for the employee.
This summarizes the regulations from the Department of Labor regarding the FFCRA. Employers would be advised to note that this law is being implemented at an unusually rapid pace due to the COVID-19 pandemic. We strongly remind employers that guidance from the federal government is evolving due to this rapid implementation, suggest working with your legal counsel as you implement this law and check the M3 blog for further updates as they happen.