Implementing the Families First Coronavirus Response Act (“FFCRA”): Department of Labor Provides Updated Guidance—Part II

Robert Clayton "Clay" Roesch
April 24, 2020
People walking around on busy street with masks on

Since the FFCRA’s enactment on March 18, 2020, the Department of Labor (“DOL”) has made good on its promise to release guidance on the implementation the new Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and The Emergency Paid Sick Leave Act (“E-PSLA”) on a “rolling” basis.

The DOL has continually released guidance in the form of its Frequently Asked Questions (FAQs) webpage, with the most recent most recent version found here, as well as facts sheets and a new required workplace poster. More substantially, the DOL published its Temporary Regulations under the FFCRA in the Federal Register on April 6, 2020.

This update provides highlights and clarifications on issues employers should know moving forward.

The DOL Lifted its Stay on Enforcement – The FFCRA’s paid leave provisions became effective April 1, 2020. However, the DOL had a limited stay of enforcement until April 17, 2020. The DOL is now enforcing the FFCRA. So, employers need to immediately ensure they have FFCRA policies in place and are operating in compliance with the FFCRA’s provisions. Remember, the DOL will retroactively enforce violations back to the effective date of April 1, 2020, if employers have not since remedied the violations.

Small Business Exemption—the DOL has provided further information regarding the small business exemption to the FFCRA leave provisions. An employer (including a religious or nonprofit organization), with fewer than 50 employees is exempt from providing: (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) 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 minimal capacity;

  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail substantial risk to the financial health or operation capabilities of the small business because 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.

Based on the DOL’s explanation of the small business exemption, it appears an employer could grant leave to some employees but deny leave to others depending on the financial impact. Further, the DOL requires that the small businesses claiming this exemption must document the determination that it is exempt. However, there is no requirement that the employer must send this documentation to the DOL. No specified form of documentation is explained or required, just as long as the documentation establishes one of the three requisite bases for exemption listed above.

“Substantially Similar Condition”—Of the six qualifying reasons for an employee to be eligible for E-PSLA benefits, the sixth defined reason is: “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.”

However, the U.S. Department of Health and Human Services (“HHS”) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. This appears to be a catchall provision that provides flexibility for defining additional reasons for leave in the future. Nonetheless, the DOL states it will issue guidance explaining when an employee may take paid sick leave because of a “substantially similar condition.”

Quarantine and Isolation Clarified—For the purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that causes an employee to be unable to work (or telework). However, for such an order to qualify the employee for leave, being subject to the order must be the reason the employee is unable to perform work (or telework) that the employer has available for the employee. As result, an employee cannot take paid leave under the E-PSLA due to a quarantine or isolation order if the employer does not have work for the employee to perform due to the order or for other reasons.

Concurrent Usage of FFCRA Leave and Existing Employer Leave Policies—The DOL clarified that paid sick leave under the E-PSLA is in addition to any form of paid or unpaid leave already provided by an employer’s existing leave policy. An employer may not require the employer’s provided paid leave to cover the same hours as paid sick leave under the E-PSLA.

However, an employer may require that any paid leave available to an employee under the employer’s existing policies run concurrently with the paid leave under the E-FMLA to allow an employee to care his or her child because their school or place of care closed due to a COVID-19 related reason. In this situation, the employer must pay the employee’s full pay during the leave until the employee exhausts his or her available paid leave under the employer’s policy.

Additionally, upon agreement between the employer and employee, and subject to federal or state law, paid leave provided by an employer may be used to supplement the two-thirds pay the employee may receive under the E-FMLA so that the employee may receive the full amount of the employee’s normal compensation.

Lastly, an employee may choose—but an employer cannot require the employee—to take paid sick leave under the E-PSLA or paid leave under the employer’s existing leave policy for the first two weeks of unpaid E-FMLA leave, but not both.

12-Workweek Standard applies for FMLA and E-FMLA—An eligible employee is entitled to paid sick leave under the E-PSLA regardless of the amount of leave taken by the employee under the FMLA. However, if the employer was covered by FMLA prior to April 1, 2020, the employee’s eligibility for E-FMLA is contingent upon the employees’ FMLA leave usage during the employer’s designated 12-month period. An employee may take a total of 12 workweeks for both FMLA and E-FMLA during a 12-month period. If an employee has taken some—but not all—of their 12 workweeks under FMLA during the 12-month period, then the remaining leave available can be used pursuant to E-FMLA leave.

For example, if an employee took two weeks of FMLA leave in January 2020 to recover from surgery, the employee would have 10 weeks of FMLA leave remaining. Because E-FMLA is just an expanded type of FMLA, the employee would only be entitled to take 10 weeks of E-FMLA if they are eligible. If the employer has only become covered by FMLA on or after April 1, 2020, this analysis does not apply.

Conditions for Intermittent Leave—The DOL has clarified that although intermittent leave is not specifically permitted under the FFCRA, employers may allow it by policy. But conditions apply.

Unless the employee is teleworking, once the employee begins taking paid leave under the E-PSLA, the employee must continue to take paid sick leave each day until (1) the full amount of paid sick leave provided by the E-PSLA is used or (2) the employee no longer has a qualifying reason for taking paid sick leave. This is because an employee who qualifies for E-PSLA is a vector for coronavirus and the goal of E-PSLA is to prevent the spread of the virus.

However, if the employee and employer agree, a teleworking employee can receive paid sick leave under the E-PSLA or E-FMLA intermittently. Intermittent leave can be taken in any increment provided the employer and employee can agree. For instance, an employee could work from 8:00 AM to 12:00 PM, take leave from 12:00 PM to 2:00 PM, then return to teleworking. The employee could then request two hours-worth of leave.

In fact, the DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of such voluntary arrangements that combine telework and intermittent leave. However, it is important to remember if an employee no longer has a qualifying reason for taking paid sick leave under E-PSLA or E-FMLA before the paid sick leave is exhausted, the employee may take any remaining paid sick leave later if another qualifying reason occurs until December 31, 2020.

Overtime—An employee may be entitled to FFCRA paid leave for more than 40 hours in a workweek, if the employee would have normally been scheduled for more than 40 hours per workweek. However, there is not a requirement for payment for E-PSLA hours at a premium rate, or that the employee receive more than 80 hours total of paid leave under the E-PSLA.

**ShuffieldLowman anticipates changes to develop as both federal and Florida government responds to this unprecedented health emergency. We will provide updates as we are able in this developing legal situation and other COVID-19 related employment legislation that may be enacted in the coming weeks and months.

***Disclaimer: The information contained herein provides an overview of developing and ongoing legislation and does not constitute legal advice for any particular situation.