As we discussed in a previous blog post which you can find here, the federal Families First Coronavirus Response Act (“FFCRA”) created two new paid leave entitlements employees working in companies with fewer than 500 employees. We are referring to these new entitlements as Emergency FMLA Leave and Emergency Paid Sick Leave, respectively.
Since the FFCRA was signed into law on March 18, 2020, we have been waiting for guidance from the U.S. Department of Labor (“DOL”) regarding the administration of these new leaves. The DOL has now issued non-binding guidance in the form of a lengthy question-and-answer document. The DOL has also mandated that employers post a notice regarding employee rights under the FFCRA.
DOL’s New Posting Requirement
The DOL has mandated that all employers with less than 500 employees must post a notice detailing employee rights under these provisions in a “conspicuous place on its premises.” Given that many employees are working remotely, employers may satisfy this requirement by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website. You can read the DOL’s answers to frequently asked questions about the notice requirements here.
The DOL did not specify a date by which the notice must be posted. However, as discussed below, the paid leave provisions of the FFCRA go into effect on April 1, 2020. As such, to ensure compliance, employers should post the notice via one or more of the methods discussed above on or before April 1, 2020.
Employers can obtain the required notice, at no cost, by contacting the DOL’s Wage and Hour Division at 1-866-4-USWAGE (1-866-487-9243) or by downloading and printing the notice here.
DOL’s New Guidance on Paid Leave
On March 24, 2020, the DOL issued extensive preliminary guidance regarding the specifics of the FFCRA’s paid leave provisions in a question and answer format, which you can read in full here. Below is a summary of the most critical takeaways for employers.
Please note that this guidance is non-binding, meaning that, when the DOL issues regulations regarding the administration and enforcement of these provisions of the FFCRA, the DOL could potentially change its stance on any of the guidance provided. But, for now at least, this document is the best (and only) information we have about how the DOL is likely to interpret and enforce the FFCRA’s paid leave provisions.
- FFCRA EFFECTIVE DATE – APRIL 1, 2020
The DOL announced that the Emergency FMLA Leave and Emergency Paid Sick Leave provisions of the FFCRA will take effect on April 1, 2020, which is a day earlier than expected.
- SMALL BUSINESS EXEMPTION
Are small businesses exempt from the paid leave provisions of the FFCRA?
Small businesses (defined as businesses with fewer than 50 employees) are exempt from providing Emergency FMLA Leave and Emergency Paid Sick Leave if providing the leave would “jeopardize the viability of the small business as a going concern.”
The small business exemption is available if “an authorized officer of the business” has determined that:
- Providing paid leave under the FFCRA would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid leave under the FFCRA would entail a substantial risk to the financial health or operational capabilities of the business because of the employee(s)’ specialized skills, knowledge of the business, or responsibilities; or
- 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 leave under the FFCRA, and the labor or services are needed for the business to operate at a minimal capacity.
What documentation does a small business need to show it qualifies for the exemption?
Small business employers who plan to deny an employee’s request to take Emergency FMLA Leave or Emergency Paid Sick Leave should document why the business meets the criteria set forth above, which the DOL has indicated will be addressed in more detail in the forthcoming regulations. The DOL explicitly stated that employers seeking to utilize the exemption should not send any such documentation or other materials to the DOL.
- HOW EMPLOYERS GET TAX CREDITS – REQUIRED DOCUMENTS
In order to receive tax credits for the cost of paid leave provided under the FFCRA, employers must retain appropriate documentation in their records. To determine what specifically to retain, the DOL directed employers to consult Internal Revenue Service (“IRS”) forms, instructions, and information regarding the procedures to claim a tax credit.
In terms of documentation employees are required to provide, employees must provide documentation in support of their paid sick leave as specified in applicable IRS forms, instructions, and information. If an employee requests Emergency FMLA Leave, the employer may require the employee to provide documentation in support of the employee’s need to take leave to care for the employee’s child(ren) whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19-related reasons. This documentation could include a notice that has been posted on a government, school, or day care website, published in a newspaper, or emailed from the school, place of care, or child care provider.
- INABILITY TO WORK OR TELEWORK
An employee is “unable to work” under the FFCRA if: (1) the employer has work for the employee; and (2) one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either at the employee’s normal worksite or by means of telework.
An employee is not “unable to work” under the FFCRA if the employee and the employer agree that the employee will work his or her normal number of hours, but outside of the employee’s normally scheduled hours. Under those circumstances, the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule.
- INTERMITTENT LEAVE
Can employees take Emergency FMLA Leave and/or Emergency Paid Sick Leave intermittently while teleworking?
Yes, if: (1) the employer allows such intermittent leave; and (2) the employee is unable to telework his or her normal schedule due to one of the qualifying reasons in the Emergency Paid Sick Leave Act or because the employee needs to care for his or her child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons.
Can employees take Emergency Paid Sick Leave and/or Emergency FMLA Leave intermittently while working at the employee’s usual worksite?
—Emergency Paid Sick Leave:
Generally, no (with one exception).
Emergency Paid Sick Leave cannot be taken intermittently if an employee is still working at his or her usual worksite (unless that worksite is at the employee’s home) except where the employee is taking the leave to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. If the employee is taking the leave for this limited reason, the employee may take the leave intermittently if the employer and employee agree.
Once the employee begins taking Emergency Paid Sick Leave for any other qualifying reason, the employee must continue to take paid sick leave each day until he or she either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.
The DOL noted that this limit is necessary because, if an employee is sick or possibly sick with COVID-19 (or caring for an individual who is sick or possibly sick with COVID-19), the intent of the FFCRA is to provide Emergency Paid Sick Leave in order to prevent the employee from spreading the virus to others.
—Emergency FMLA Leave:
Yes, with the employer’s permission.
- INTERACTION OF TRADITIONAL FMLA LEAVE AND EMERGENCY FMLA LEAVE
Employees are entitled to take a total of 12 workweeks of leave during a 12-month period under the FMLA. This total includes any traditional FMLA leave and any Emergency FMLA Leave taken by the employee.
When will we know more?
The DOL has indicated that it intends to issue regulations regarding the paid leave provisions of the FFCRA soon. Unlike the guidance discussed above, any regulations issued by the DOL will be binding on employers.
Though the DOL has not explicitly stated when we can expect the new regulations, presumably the goal is to implement them prior to April 1 when the FFCRA becomes effective. We will blog about the content of the new regulations as soon as they are issued.