Labor & Employment Developments Blog

Late last week the DOL issued two additional sets of guidance on the FFCRA to answer many of the pressing questions employers have been asking as they prepare for its April 1, 2020 effective date.  The guidance is in FAQ format and covers a wide variety of topics over a current total of 59 questions and answers. Some of the highlights include:

Furloughed Employees are Not Eligible for Benefits: 

Recall that the two leave benefits provided by the FFCRA are paid sick leave and enhanced FMLA leave. The new DOL guidance makes clear that neither is available to employees who are furloughed or laid off. It does not matter if the employee is placed on furlough before or after April 1, 2020. In all furlough scenarios, the employee cannot get FFCRA benefits but may seek unemployment compensation benefits.  

A frequent question that has come up is whether employees who lose employment due to state shelter in place or business closure orders are eligible for FFCRA benefits. While the question is not explicitly answered, it appears from the guidance that the answer is no. The DOL notes: 

If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. 

See FAQs 23-28.  

Intermittent Leave is Available but Limited:

The default increment of leave available under the FFCRA is a full day. The DOL guidance notes that once an employee begins taking paid sick leave for one or more qualifying reasons:

[the employee] must continue to take paid sick leave each day until you [employee] either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others. 

The employer and employee may agree to intermittent leave but there are two scenarios. For teleworking employees, intermittent leave can be used for any covered reason. For employees reporting to a worksite, intermittent leave is only available for child care related reasons; leave for other reasons must be taken in full day increments. In either case, intermittent leave is only available if the employer agrees to provide it. See FAQs 20-22.

Standard for Claiming the Small Business Exemption:

The FFCRA indicates that employers with under 50 employees may be eligible for an exemption from the law if compliance would jeopardize the viability of the business as a going concern.  The latest DOL guidance has clarified the test for this exemption:  

A small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
3. 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 sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Small employers may claim the exemption if any one of the above three conditions are met. Previously issued DOL guidance indicated that employers should document why their business with fewer than 50 employees meets the criteria set forth by the Department. As a result, employers seeking to claim the exemption will need to document how and why an authorized officer of the business concluded that one of the above criteria were met.  

Finally, small employers should note that the exemption applies only to:

(a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons 

Thus, there is no available exemption to paid sick leave for reasons other than child care issues, e.g. medical reasons. See FAQs 4, 58-59.

Employee Documentation of Need for Leave:

The DOL removed much of its earlier guidance on employee documentation of need for leave and instead refers to "documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information." Additional forms and instructions will likely be issued by the IRS in the very near future. See FAQ 16.

Obviously, the latest rounds of DOL guidance on the FFCRA covered a great deal. If you need assistance with compliance or have questions, please contact a member of the KMK Labor & Employment Group.