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UPDATED! DOL Guidance: Families First Coronavirus Response Act

Posted by Tonya Fletcher SPHR, SHRM-SCP on Apr 2, 2020 3:50:14 PM
Tonya Fletcher SPHR, SHRM-SCP
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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.

NEW! 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

Written by Tonya Fletcher SPHR, SHRM-SCP

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

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