Department of Labor Sheds Some Light on Employers’ Obligations Under the FFCRA

Last week, the US Department of Labor released responses to 59 frequently asked questions relating to employer responsibilities under the Families First Coronavirus Response Act (FFCRA). The FFCRA requires most employers with less than 500 employees, as well as most public employers, to provide eligible employees with emergency paid sick leave and paid family leave beginning April 1, 2020. The following is a summary of highlights from the March 26, 2020 release:

Determining whether an employer is over the 500-employee threshold: In determining whether an employer “employs” over 500 employees, one should count all full and part-time employees within the United States, the District of Columbia, or any US territory. This includes employees on leave, temporary employees (even if on another employer’s payroll), and day laborers. It does not include those who are considered independent contractors under the Fair Labor Standards Act (FLSA). If two or more entities meet the integrated employer test under the FMLA, employees of all entities making up the integrated employer will count toward the total.

Who is an emergency responder? An emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of COVID-19 patients, or whose services are otherwise needed to limit the spread of COVID-19.

Some examples include, but are not limited to, law enforcement, correctional institution personnel, fire fighters, EMS personnel, physicians, nurses, public health personnel, paramedics, 911 operators, and public works personnel.

Definition of “unable to work”: An employee is “unable to work” if his or her employer has work for him or her to do and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents him or her from being able to perform that work, either under normal circumstances or by means of telework. All telework must be paid normal wages and is not compensated under the paid leave provisions of the FFCRA.

Continuation of health insurance: An employer who provides group health coverage must continue to provide such coverage to employees while they are on paid sick leave or expanded family and medical leave.

Paid sick leave or expanded family medical leave in the event that an employer closes a worksite or after employee furlough: If an employer closes a work site either because it was required to close pursuant to federal, state, or local directive, or because of lack of business, it is not required to provide paid sick leave or expanded family medical leave. An employee is not entitled to paid sick leave or expanded family medical leave in the event that he or she is furloughed.

Intermittent leave: An employee may take intermittent leave while teleworking, if the employer allows teleworking. While teleworking, an employee may take leave in any increment upon which the employee and employer can agree.

If an employee is not teleworking, paid sick leave taken for qualifying reasons related to COVID-19 (with the exception of caring for a child out of school or without child care) must be taken in full-day increments and cannot be taken intermittently under certain circumstances.

What if an employee has already taken FMLA leave this year? If an employee has already taken FMLA leave in the past 12 months, that amount of leave taken counts against the amount of leave available under the Emergency Paid Sick Leave Act for COVID-19 related reasons. In other words, employees are not entitled to 12 weeks of FMLA under this new law in addition to the 12 weeks of FMLA leave available for the other FMLA qualifying events.

Exception for small businesses with fewer than 50 employees: An employer with fewer than 50 employees is exempt from child-care related paid sick leave and expanded family medical leave requirements if an authorized officer of the business has determined that:

Provision of sick pay or leave would result in the business’ expenses and financial obligations exceeding available business revenues and cause the business to cease operating at minimal capacity.
The absence of the employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the person’s specialized skills, knowledge, or responsibilities.
There are not sufficient workers available to perform the labor or services provided by the employee requesting leave and the labor or services are needed for the business to operate at minimum capacity.

A small business must document why an authorized officer has determined that the business fits one or more of the above criteria, though the documentation only need be supplied to the Department of Labor if the Department requests it.

In addition, The DOL issued a Field Assistance Bulletin on March 24, 2020 confirming that the DOL will not bring enforcement actions against employers for violations of the FFCRA that occur through April 17, 2020, provided that the employer has made a reasonable, good faith effort to comply with the FFCRA.

A full list of the Department of Labor’s March 26, 2020 FAQs can be found at the following web address: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Should you have any questions relating to the FFCRA or need any other employment law assistance, one of our attorneys would be happy to assist.

This document is not intended to provide legal advice, and is merely intended to be informational. If you have specific questions, please contact legal counsel.