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Focal points of the DOL’s second and third Q&A sets and (very) temporary grace period for good-faith violations of FFCRA
By Jill Luft on March 29, 2020 at 2:40 PM

Q&A logo on FFCRAAs employers gear up for the coming workweek in which April 1 falls, now is a good time to highlight three U.S. Department of Labor publications issued last week regarding the Families First Coronavirus Response Act (FFCRA).*  

The DOL’s second and third sets of FFCRA Q&As

Two days after issuing its first set of Q&As (#1-15) relating to the implementation of emergency paid sick leave and paid expanded FMLA leave (read more here), the DOL published its second set of Q&As (#16-37) on March 26. On March 28, the DOL published its third round of Q&As (#38-59). These most recent installments answer many questions that have been on the minds of employers (and their lawyers) since the FFCRA was signed into law March 18. The full text of the DOL’s Q&As can be found here. Condensed, significant highlights follow.

Round 2: Q&As #16-37

  • Emergency paid sick leave and paid FMLA leave are continuous leaves of absence. That’s the general rule. Leave can be taken intermittently only if the employer and employee agree to it.
  • If an employer closes its worksite, employees are not entitled to paid sick leave or paid FMLA leave. It doesn’t matter when the closure occurs (before or after April 1), if the employee is already on a leave when the closure occurs, if the employer furloughs an employee, or if the workplace is closed only temporarily. Once the worksite closes, leave entitlement ends. It also doesn’t matter if the worksite is closed because of a downturn in business or because of a federal, state or local order requiring the closure, including a shelter-in-place order.
  • Employers may require employees to provide documentation to support leave requests. Depending on the circumstances, sufficient documentation could be in the form of an email from or website announcement by the school or daycare of an employee’s minor child stating that it is closing for reasons due to COVID-19. Or it could be a doctor’s note stating that the employee must self-quarantine for a reason related to COVID-19. Or it could be a copy of a state governor’s order requiring quarantine or isolation related to COVID-19.

NOTE: The employer will use this documentation when it seeks tax credits from the IRS for providing the paid leave.

  • If an employer reduces an employee’s regular work hours due to a lack of work, the employee cannot use emergency paid sick leave or paid FMLA leave for the hours that were cut. Instead, the employee may be eligible to receive partial unemployment benefits for those reduced hours, depending on applicable state law.
  • An employer may agree to, but cannot require, an employee to use accrued PTO to bridge the 1/3 gap between an employee’s regular pay and any leave that is paid under the FFCRA at 2/3 of the employee’s regular pay.

Round 3: Q&As #38-59

  • The Emergency Family and Medical Leave Expansion Act does not increase the total amount of FMLA time an employee may take. The total amount of FMLA leave an employee may take, which includes expanded paid FMLA leave, is 12 workweeks during a 12-month period.
    • Example: Employee used two weeks of FMLA leave in January 2020 for surgery and recovery. This employee has 10 weeks of FMLA leave remaining that could be used for expanded FMLA leave.
    • Example: Employee used 12 weeks of FMLA in the fall of 2019 for the birth of her child and baby bonding. She may not take expanded FMLA leave on or after April 1 to care for her child if her baby’s childcare is closed for reasons related to COVID-19.
    • Example: Employee takes four weeks of expanded FMLA in April 2020 to care for his child whose school is closed for a COVID-19 related reason. This employee has eight remaining weeks of FMLA remaining to use during the 12-month period used by the employer.
  • Emergency paid sick leave is not a form of FMLA leave and does not count toward the 12 workweeks in the 12-month period. However, if an employee takes emergency paid sick leave concurrently with the first two weeks of expanded FMLA leave, which may otherwise be unpaid, then those two weeks do count toward the 12 workweeks in the 12-month period.
  • A small business is exempt from providing certain paid sick leave and expanded FMLA leave if doing so would jeopardize the viability of the business as a going concern. More specifically, a small business is exempt if:
    1. It employs fewer than 50 employees; and
    2. Leave is requested because the employee’s child’s school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons; and
    3. An authorized officer of the business has determined that at least one of the three conditions described in the section immediately below has been satisfied.

NOTE: For purposes of emergency paid sick leave, this small business exemption only applies when the leave is for the purpose of childcare. It does not extend to the five other qualifying reasons giving rise to for emergency paid sick leave.

  • Factors to consider when determining whether an employer with fewer than 50 employees can claim the small business exemption from providing paid sick leave or expanded FMLA leave are now identified. The small business may claim this exemption if it has determined that:
    1. Providing paid sick leave or expanded FMLA leave would result in the expenses and financial obligations of the business exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or
    2. Employees’ absences from work for either of these leaves 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 to perform the work provided by the employee(s) requesting paid sick leave or expanded FMLA leave, and this work is needed for the business to operate at a minimal capacity.
  • An employer with fewer than 25 employees is not required to restore an employee taking paid sick leave or expanded FMLA leave to care for a child whose school or childcare was closed to her same or equivalent position if all four of these hardship conditions exist:
    1. The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the employee’s leave; and
    2. the employer made reasonable efforts to restore the employee to the same or an equivalent position; and
    3. the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
    4. the employer continues to make reasonable efforts to contact the employee for one year beginning on either the date to leave related to COVID-19 reasons concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.
  • “Health care provider” is defined very broadly in the context of determining which employees are health care providers who can be exempted from paid sick leave and expanded FMLA leave by their employers. The definition includes anyone employed at any doctor’s office, hospital, health care center, 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. It also includes persons employed by an entity that contracts with any of the health care providers identified in the prior sentence to provide services to or maintain the operation of the facility, such as entities that provide medical services, produce medical products, or are otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatment.

Some unresolved issues remain regarding remote working, which will hopefully be addressed by the DOL when it issues its FFCRA regulations. Specifically:  

  • The DOL states that an employee can work remotely when the employer allows him to do so. However, the DOL also states that an employee is unable to work remotely if the employer has work available for the employee but the employee is unable to work for one of the FFCRA enumerated reasons related to COVID-19. Who decides whether the employee is able or unable to work remotely?
  • For example, if prior to April 1, an employee effectively made alternative childcare arrangements because his child’s school closed due to COVID-19 related reasons, can the employee now claim entitlement to paid sick leave and/or expanded FMLA leave beginning April 1?

The DOL’s Field Assistance Bulletin No. 2020-1

In a memo issued March 24, the DOL announced that it will not bring enforcement actions against employers for purported violations of the FFCRA provided that the employer has made “reasonable, good faith efforts to comply with the Act.” This non-enforcement grace period is short-lived, however, and runs only through April 17, 2020.

An employer can establish that it acted “reasonably” and “in good faith” when (1) the employer remedies any violations and makes affected employees whole as soon as practicable; AND (2) the employer’s violations were not willful (“willful” means that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited”); AND (3) the employer commits in writing to the DOL that it will comply with the FFCRA in the future.

* This post assumes the reader’s familiarity of the basics of the FFCRA and is intended to be a quick synopsis of top takeaways for employers.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer your questions regarding these high-level updates as well as specific situations that your business is encountering related to COVID-19.

Link to COVID-19 Resources page

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