The Department of Labor (DOL) has continued to update its Families First Coronavirus Response Act Questions and Answers to provide more guidance on the emergency paid sick leave and expanded family and medical leave requirements. Employers should review the DOL’s Q&A carefully, as the law goes into effect today, April 1, 2020.

Several key questions have recently been addressed and are summarized below. For further details see the referenced questions on the DOL’s website.

Small Business Exemption
The Act states that a small business with fewer than 50 employees is exempt from certain paid sick leave and expanded family and medical leave requirements of the Act if providing an employee such leave would “jeopardize the viability of the business as a going concern.” The criteria and requirements for the exemption are now clarified (see questions #58-59). It is important to note that the exemption is for child care related leave.

Health Care Provider Exemption
The Act exempts certain “healthcare providers” from the paid sick leave and expanded FMLA leave mandates. The DOL has provided clarification as to who are such healthcare providers, and it is a very broad definition. A health care provider is 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 (see question #56).

Emergency Responder Exemption
The Act exempts certain “emergency responders” from the paid sick leave and expanded FMLA leave mandates. The DOL defines an emergency responder as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19 (see question #57).

Documentation for Leave
In order to take advantage of the payroll tax credits, employers must require an employee taking paid leave to provide appropriate documentation to support the leave (see questions #15-16).

For paid sick leave documentation includes the name of employee; the qualifying reason for leave supported by documentation such as the government order or a health care provider’s statement; a statement that the employee is unable to work, including telework, because of the qualifying reason; and the dates for which leave is requested. For expanded FMLA documentation may include a notice of closure or unavailability of school or daycare, such as a post on a government website; a newspaper publication; or an email from an employee or official of the school or day care. Documentation should be retained for at least 4 years and employers should also review the IRS website for additional requirements.

Worksite Closures, Furloughs and Reduction in Hours
The DOL website provides several helpful scenarios to review (see questions #23-28). Generally, employees who are furloughed or have a reduction in hours should apply for unemployment benefits and are not eligible for leave under the Act. From the DOL website: "This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.”

Expanded FMLA
The DOL clarified that the expanded FMLA is not an additional 12 weeks of leave on top of the existing 12 week FMLA entitlement during a 12-month period. However, employees are entitled to paid sick leave under FFCRA regardless of how much leave they have taken under the FMLA (see questions #44-45).  

The information above is a brief summary of a few of the DOL’s updates on FFCRA. Employers are encouraged to review the Q&A on the DOL’s website as it will provide guidance on many common questions.
 

Employee Rights Notice

The Department of Labor has released the Employee Rights Notice under the Families First Coronavirus Response Act. Each covered employer must post the notice in a conspicuous place on its premises by today, April 1, 2020. Given that many employees are not currently working on-site, employers may satisfy this requirement by providing the notice via email, direct mail, or posting to an internal or external website.

Employers must share the notice with current employees, including new hires, but need not do so with those who have been recently laid off.

Download the Employee Rights Notice
https://www.sek.com/sites/default/files/FFCRA_Poster_WH1422_Non-Federal.pdf

DOL’s Question and Answers on Notice
https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

Please contact Laura Stover with questions.