On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”), into law. On the evening of Thursday March 26, 2020, the U.S. Department of Labor (“DOL”) released a second round of Questions and Answers (“FAQs”) that further explain employer and employee rights and responsibilities under FFCRA with respect to expanded leave under the Emergency Family and Medical Leave Expansion Act and paid sick leave under the Emergency Paid Sick Leave Act.
For purposes of brevity in this Legal Alert, references to the Emergency Paid Sick Leave Act will be stated as “EPSLA,” while reference to the Emergency Family and Medical Leave Expansion Act will be stated as “EFMLEA.”
General Questions Regarding the FFCRA
Effective Date of the FFCRA: The DOL explains that FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
Retroactivity: Paid sick leave under the EPSLA and family and medical leave under the EFMLEA are not retroactive.
Employer Record-keeping Requirements: The DOL explains that employees requesting paid sick leave under the EPSLA must provide their employer with appropriate information to support their leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, resulting from the qualifying reason for requesting the leave, and the date(s) for which leave is requested.
Employees seeking to take expanded family and medical leave under the EFMLEA to care for children whose school or place of care is closed, or because a child care provider is unavailable, due to COVID-19, must similarly provide the employer with appropriate documentation in support of such leave, just as they would for conventional Family and Medical Leave Act (“FMLA”) leave requests.
Employees must also provide documentation supporting the absence. Appropriate documentation includes: a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee and/or the employee’s child’s school, or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.
The DOL recommends employers intending to claim tax credits for providing paid leave under the FFCRA keep this documentation. The DOL advises employers to consult with the Internal Revenue Service to obtain information for the process they will need to follow to claim this tax credit, including any necessary supporting documentation.
What it Means to be “Unable” to Work or Telework, for COVID-19 Reasons: The term “unable” to work or telework means that an employer has work available, but one of the specified paid reasons for leave under the FFCRA prevents the employee from being able to do so. If an employer offers the ability to work the same number of hours per day but different hours, the employee is able to work and leave is unnecessary unless: 1) the reason for leave prevents the employee from working that schedule; 2) the employee has a qualifying paid sick leave absence; or 3) the employee cannot telework due to the need to care for a child. To the extent an employee is able to telework while caring for his or her child, paid sick leave and expanded family and medical leave are not available.
Worksite Closures Before April 1, 2020: If an employer closes a worksite before April 1, 2020 (the effective date of the FFCRA), sends the employee home and stops paying the employee because it does not have work for the employee to do, the employee will not get paid sick leave or expanded family and medical leave but the employee may be eligible for unemployment insurance benefits. This is true whether the worksite closes for lack of business or per a federal, state, or local directive. If this occurs, an employee’s only recourse is to seek unemployment benefits.
Worksite Closures on or After April 1, 2020: If an employer closes a worksite on or after April 1, 2020 (the effective date of the FFCRA), the employee will not get paid sick leave or expanded family and medical leave but the employee may be eligible for unemployment insurance benefits. This is true whether the worksite closes for lack of business or per a federal, state, or local directive. If this occurs, an employee’s only recourse is to seek unemployment benefits.
Work Closures While Employee is on Emergency Paid Sick Leave or Expanded Family and Medical Leave: If an employer closes while the employee is on emergency paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave the employee used before the employer closed. However, as of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave. This is true whether the employer closes the worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. If this occurs, an employee’s only recourse is to seek unemployment benefits.
Work Furloughs: If an employer is open but furloughs an employee on or after April 1, 2020 (the effective date of the FFCRA), because it does not have enough business or work for the employee, the employee is not entitled to take emergency paid sick leave or expanded family and medical leave. The employee, however, may be eligible for unemployment benefits.
Temporary Worksite Closures: If an employer closes its worksite on or after April 1, 2020 (the effective date of the FFCRA), but informs its employees it will reopen at some time in the future, the employees are not entitled to take emergency paid sick leave or expanded family and medical leave while the worksite remains closed. The employees, however, may be eligible for unemployment benefits.
Reduction of Work Hours: If an employer reduces an employee’s scheduled work hours because it does not have enough work for the employee to perform, the employee is not entitled to take emergency paid sick leave or expanded family and medical leave for the hours the employee is no longer scheduled to work. The DOL explains this is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the employee’s reduction in hours was somehow related to COVID-19.
Health Coverage Continues During Leave: Existing FMLA standards apply to emergency family leave. Employees can continue group health coverage on the same terms; if an employee has family coverage, an employer must maintain such coverage, and employees must generally continue to make regular contributions for their own portion of premiums. The requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) prohibit employers from establishing an eligibility rule for paid sick leave or setting an individual’s premium or contribution rate based on whether the employee is actively at work, “unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.”
Employers Cannot Require Employees to Use Existing Benefits: Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including federal employees. An employer cannot adjust or supplement the pay mandated under the FFCRA with paid leave that the employee already has under the employer’s policy unless the employee chooses to use his or her existing leave.
An employee may not simultaneously use his or her employer’s preexisting leave entitlements and FFCRA paid sick leave and expanded family and medical leave, unless the employer agrees to allow the employee to use preexisting leave entitlements to supplement the amount he or she will receive from paid sick leave or expanded family and medical leave under the FFCRA up to the employee’s normal earnings. For example, if the employee is receiving 2/3 of his or her normal earnings from paid sick leave or expanded family and medical leave under the FFCRA an employer may permit the employee to use his or her preexisting employer-provided paid leave for the additional 1/3 of the employee’s normal earnings.
Questions Regarding the EFMLEA
What Type of Leave is Paid Under the EFMLEA: Under the EFMLEA the only type of family and medical leave that is paid leave is expanded family and medical leave under the EFMLEA when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
What does this DOL guidance mean for California employers subject to the statewide shelter-in-place Executive Order N-33-20 issued by Governor Newson on March 19, 2020?
The DOL’s guidance did not carve out a specific question and answer for shelter-in-place orders (like Governor Newsom’s Executive Order N-33-20). However, the DOL made it clear that if a worksite closes (for any reason, including as a result of a federal, state, or local order to shelter-in-place or business closure order), employees do not receive, or continue to receive, emergency paid sick leave or emergency family leave under the FFCRA.
Questions
Kronick attorneys across all of the firm’s practice groups – Natural Resources, Public Agencies, Labor & Employment, and Business/Healthcare – are providing clients and the community with ongoing updates as conditions warrant. In the meantime, please feel free to contact us for assistance with issues arising from the current health crisis.