Many other questions and detailed answers for employers and employees about how the FFCRA will be applied, who qualifies in different situations, and what documentation is required are available on the DOL website.
According to the DOL guidances, the department will observe a temporary period of non-enforcement of the FFCRA sick leave and FMLA leave requirements until April 17 – but only for employers who attempt to comply reasonably and in good faith, as well as trying to remedy any violations and making employees whole as soon as practicable.
DOL’s guidance states that criteria for applying this exemption will be announced in regulations the department is working on. For now, the department recommends that small employers should document why their businesses would meet the criteria, but should not send any supporting materials to DOL.
The FFCRA authorizes the Secretary of Labor to exempt small businesses with fewer than 50 employees from the Act’s requirements for leave related to school closures or the unavailability of a childcare provider when the requirements “would jeopardize the viability of the business as a going concern.”
When it comes to pre-Act leave and retroactivity, DOL clearly states that covered employers who have already provided paid leave to employees prior to April 1 effective date (including for Coronavirus-related reasons) are not exempt from the act’s coverage. These employers still must provide all of the paid leave required under the Act. DOL also says that the Act’s leave requirements are not retroactive.
· Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
· Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
· Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
· Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
· Is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
This applies only to teleworking. When they are working at the job site, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken if the employee:
Other Leave Requirements
DOL said it, “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the department is supportive of such voluntary arrangements that combine telework and intermittent leave.”
Employees also can take paid sick leave or expanded family and medical leave intermittently while teleworking if they are unable to telework for all of the scheduled hours because of the need to take care of a child. For example, if employer and employee agree on a 90-minute increment, they could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
Similarly, if the employee is unable to perform those teleworking tasks or telework for the required hours because of the need to care of their child whose school or place of care is closed, or child care provider is unavailable because of COVID-19-related reasons, then the employee is may take expanded family and medical leave. Of course, to the extent the employee is able to telework while caring for the child, paid sick leave and expanded family and medical leave is not available.
If the employer permits teleworking -- for example, allows the employee to perform certain tasks or work a certain number of hours from home or at a location other than the normal workplace -- and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then then they are entitled to take paid sick leave.
Related entities should count all of their employees together if they meet the FLSA joint employer test, for purposes of determining coverage under both the FFCRA’s sick leave and FMLA leave provisions. In addition, entities that meet the FMLA integrated employer test should count their combined employees for purposes of determining coverage under the FMLA leave provision (but not the sick leave provision).
These can include employees on leave; temporary employees “jointly employed” with another employer (even if the employee is not on the employer’s own payroll); and “day laborers” (who must be counted both by the temporary agency that supplies them and the client firm if there is a continuing employment relationship). Independent contractors are not counted.
Private employers are required to provide the new leave only if they have fewer than 500 employees. DOL says that in counting employees to determine coverage, employers should consider all full- and part-time employees in the United States, its possessions and territories.
DOL also published posters for employers covered by the Act to use to satisfy their employee notice requirement. The FFCRA Employee Rights Poster is intended for use for private sector employers and certain public employers. The notice is supposed to be displayed prominently in the workplace, or employers may satisfy the requirement by e-mailing or direct mailing the notice to employees, or by posting it on an employee information internal or external website.
The new law extends additional leave benefits to workers, most of which will have to be paid by their employers. It requires all employers with fewer than 500 employees to provide their workers with a qualifying Coronavirus-related need up to two weeks of paid sick leave and up to 12 weeks of leave under the Family and Medical Leave Act (FMLA), 10 weeks of which also must be paid leave. Tax credits are available to offset the cost.
The Families First Coronavirus Response Act (FFCRA) was passed so quickly by Congress that it generated some confusion and provoked a lot of questions from employers about its provisions. The Wage and Hour Division of the U.S. Department of Labor (DOL) has issued several guidance documents that attempt to answer some of these queries.
When it comes to tax credits, DOL says that for private employers every dollar of FFCRA leave, including the cost of employees’ health insurance premiums during leave, will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer.” For more details on the tax implications, DOL directs employers to the Department of Treasury website.