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DOL Guidance: Families First Coronavirus Response Act

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on April 2, 2020

The U.S. Department of Labor (DOL) has issued additional guidance regarding the Families First Coronavirus Response Act (FFCRA). Visit the DOL website for additional details.

POSTED SEPTEMBER 14, 2020

The DOL has revised COVID-19 leave regulations clarifying employer obligations under the Families First Coronavirus Response Act (FFCRA). The DOL issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020. The new revisions will become effective September 16, 2020 in the Federal Register.

The revisions do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Click on the following link for further information: https://www.dol.gov/newsroom/releases/whd/whd20200911-2

 

POSTED AUGUST 27, 2020

The DOL has released additional answers to frequently asked questions regarding FFCRA; the latest are highlighted below. To review the entire list, visit Families First Coronavirus Response Act Q&A.

Q. My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?

A. Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

Q. My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?

A. No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

Q. My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?

A. Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

 

POSTED AUGUST 10, 2020

In response to COVID-19, the Families First Coronavirus Response Act was signed into law on March 18, 2020, and became effective on April 1, 2020. The U.S. Department of Labor issued regulations to assist employers and employees with compliance on their responsibilities and rights under the FFCRA. Shortly after the DOL issued its FFCRA regulations, the state of New York filed a lawsuit.

 A New York federal district court has now struck down parts of the DOL’s regulations regarding the FFCRA. In an August 3 order, the court held that the DOL exceeded its authority to interpret the FFCRA when it issued its’ guidance. The ruling creates uncertainty over parts of the FFCRA as well as whether the ruling applies on a national level.

 

The four provisions of the FFCRA noted in the ruling are:

  • Health Care Provider Definition
  • Work Availability
  • Documentation Requirement
  • Intermittent Leave

Health Care Provider Definition

The FFCRA permits employers to exclude healthcare providers from paid leave benefits. The state of New York challenged the DOL’s definition of healthcare provider as overbroad because it includes employees, such as a cafeteria worker, who do not provide the actual healthcare services. The court struck down the DOL healthcare provider definition.

Work Availability

The FFCRA provides paid leave benefits for a qualifying COVID-19 related reason to employees who are unable to work or telework. The DOL excluded employees whose employers did not have work for them. The court felt that this exclusion was incorrect.

Documentation Requirement

The DOL required the employee to provide the employer with certain documentation before taking leave. As a precondition to taking leave, the court found that documentation is not required before an employee takes FFCRA leave.

Intermittent Leave

The FFCRA did not address intermittent leave and the DOL limited the availability of intermittent leave in their regulations. The court let stand the regulation where intermittent leave is limited to situations where there is no risk the employee may spread the virus to others. However, they found that the DOL did not have justification to require employer consent to intermittent leave.

In addition to demonstrating the issues with rushing through legislation and regulations, the New York federal district court’s decision leaves open many questions. Additionally, the DOL could seek a stay to the decision, file an appeal, and/or create new rules or guidance. While this was issued in New York, the ruling may vastly expand leave entitlements under the FFCRA. At this time, the DOL has not issued a response to the ruling. 

 

POSTED MAY 19, 2020

The DOL has released additional guidance regarding the FFCRA. 

Q. If a child’s school closes for summer vacation, can an employee take paid sick leave or expanded family and medical leave because school is closed for summer vacation? 

A. No. Paid sick leave and emergency family and medical leave are not available for this reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other program in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

For additional answers to frequently asked questions, visit Families First Coronavirus Response Act Q&A

 

POSTED APRIL 23, 2020

The DOL clarified how the FFCRA leaves may interact with employer-provided leaves:

  • An employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19-related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.
  • Provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement 2/3 pay under the Emergency Family and Medical Leave Expansion Act so that the employee may receive the full amount of the employee’s normal compensation.
  • Finally, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both.

The DOL provides further information in their updated Q&As.  The initial non-enforcement period by the DOL has ended, so employers should continue with good-faith compliance efforts.

 

POSTED APRIL 2, 2020

The DOL confirmed that employees must give notice of their need for leave and provide documentation in support of their request. 

DOL regulations clarify that for paid sick leave or expanded family medical leave, an employer may require reasonable notice procedures as soon as practicable. 

An employee must provide a signed statement containing:

  • The employee’s name
  • The date(s) for which leave is requested
  • The coronavirus-qualifying reason for leave
  • A statement that the employee can’t work or telework because of this reason

An employee asking for leave must provide the name of the government entity that issued the quarantine or isolation order, or the name of the health care provider making the quarantine recommendation. This information should be provided as well if the employee is requesting leave to care for another person.

The DOL said that an individual requesting paid sick leave or expanded family and medical leave to care for a child must provide:

  • The name of the child being cared for
  • The name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons
  • A statement that no other suitable person is available to care for the child during the period of the requested leave

Employers must retain documentation for four years regardless of whether the leave was granted or denied. Additionally, if the employee provided oral statements to support the request for leave, the employer is required to document and retain that information as well. The normal certification requirements still apply for traditional FMLA.

 

POSTED MARCH 31, 2020

Of note, the DOL says that if an employer furloughs an employee because it does not have enough work or business for the employee, the employee is not entitled to take paid sick leave or expanded family and medical leave regardless of whether their employment has officially ended.

Definition:

  • The DOL defines “unable to work” as: An employer has work for an employee, and one of the COVID-19 qualifying reasons prevents the employee from being able to work, either under normal circumstances at the worksite or by means of telework. If the employer and employee agree that the employee will work the normal number of hours, then the employee is able to work, and leave is not necessary unless a COVID-19 reason prevents the employee from working that schedule. Employees may not use leaves for reduced hours because there is no work to perform – leave is only for a COVID-19 qualifying reason.
  • For paid sick leave, the DOL defines a “full-time employee” as an employee who is normally scheduled to work 40 or more hours per week and a “part-time employee” as an employee who is normally scheduled to work less than 40 hours per week. For emergency family leave, pay eligibility depends on the number of hours the employee normally works each week.
  • The DOL details who is a healthcare provider and emergency responder in questions 55-57. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

 

Documentation:

  • The DOL says that employers can require workers to provide additional documentation in support of emergency family and medical leave to care for children whose school or place of care has closed, or if the child care provider is unavailable due to COVID-19 reasons. This could include a notice posted on a government, school, or daycare website, or an email from an official of the school, place of care, or child care provider, as examples.
  • The DOL says employers must collect documentation in support of leave “as specified in applicable IRS forms, instructions, and information.” However, to date, the IRS has not released certification forms.

 

Intermittent Leave:

  • The DOL confirmed that an employee may take emergency family leave or paid sick leave intermittently while teleworking if the employer agrees. Intermittent leave can be taken in any increment if the employer and employee agree. For example, if you agree on a two-hour increment, an employee could telework in the morning, take intermittent leave from 1 pm – 3 pm and then continue teleworking.
  • Emergency paid sick leave in non-telework situations must be taken in full-day increments. It cannot be intermittent unless for the qualifying reason of caring for a child because the school or place of care provider is unavailable due to the public health emergency.
  • Emergency family and medical leave may be taken intermittently if the employee and the employer agree. For example, an employee could take leave on Tuesday and Thursdays, and work on Monday, Wednesday, and Friday.

 

Other Items of Note:

  • Once paid sick leave begins, the employee must continue to take the paid sick leave each day until they use either the full amount of paid sick leave or no longer have a reason for taking paid sick leave.
  • If an employer closes the worksite while a worker is on paid sick leave or emergency family leave, they must pay for leave used before the closure, but there is no further obligation as of the date of closure.

The DOL encourages employers and employees to collaborate for the best solution to maintain the business and ensure employee safety. Remember, while an employer may pay an employee in excess of the FFCRA requirements, they cannot get tax credits for those amounts in excess of the FFCRA limits.

Some good news – Although employers will face penalties for violations, the DOL announced a period of non-enforcement for employers that make good-faith compliance efforts. Good faith compliance efforts include remedying any violations as soon as practicable, not making willful violations, and providing a written commitment to the DOL to comply with the Act in the future. Check here for further Q&As from the DOL: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

While much confusion remains and further clarity is needed, this updated guidance helps with some of the issues employers have been trying to figure out.

 

Posters:

FFCRA Poster

FFCRA Poster Spanish

For DOL FAQs on the FFCRA Notice, visit: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

Tonya Fletcher SPHR, SHRM-SCP
ABOUT THE AUTHOR
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team of HR consultants and manages the delivery and content of best practice HR information to client owners and managers. When she’s not at work, Tonya enjoys international travel.

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