DOL Releases Temporary FFCRA Regulations Clarifying Employer Coverage and Documentation Requirements - American Society of Employers - Kevin Marrs

DOL Releases Temporary FFCRA Regulations Clarifying Employer Coverage and Documentation Requirements

DOL logoOn March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA), which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic.  

The Emergency Paid Sick Leave Act (EPSLA), entitles eligible employees to take up to two weeks of paid sick leave.  The Emergency Family and Medical Leave Expansion Act (EFMLEA), which amends Title I of the Family and Medical Leave Act (FMLA), permits certain employees to take up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specified reasons related to COVID-19.

The U.S. Department of Labor published temporary regulations in the Federal Register last week. These temporary regulations, which came into effect on April 2, last until December 31, 2020.  These temporary rules are intended to further explain and make clear thenew leave provisions.  The below summarizes specific sections of the regulations.

Employer Coverage

The FFCRA covers private employers with 499 or fewer employees and certain public employers. Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern.

The rules are clear that all private employers that employ 499 or fewer employees at the time an employee would take leave must comply with the EPSLA and the EFMLEA.   Changes in headcount due to hiring or reductions in force may impact employer coverage.

To determine headcount, the employer should include full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency. Independent contractors do not count towards the employee threshold. Employers need not count employees who have been laid off or furloughed and have not subsequently been reemployed. Furthermore, employees must be employed within the United States.

The rules also make clear that both for-profit and non-profit entities must comply with the FFCRA if they meet the requirements for coverage.

Intermittent Leave

The regulations provide whether EPLSA and PFML can be taken intermittently. In particular, the relevant factors include whether the employee is teleworking or working at their physical worksite and the nature of the absence (i.e., the relevant reason for use). In general, the regulations permit intermittent leave only in certain situations and only upon agreement with the employer in those situations.

Paid Leave Coordination

The regulations imply that if the employee has not used any of their EPLSA under the FFCRA, then either the employee can elect or the employer can require use of employer-provided paid time off during this two week period. However, EPLSA notes that “An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under [the Act].”

If the employee has used some or all of their FFCRA paid sick leave prior to the unpaid portion of expanded family medical leave, then the employee can choose to substitute employer-provided paid time off during this two week period; however, it appears that the employer cannot require substitution.

In the situation in which the employee has a 10-week period of expanded family medical leave which is paid at 2/3 of an employee’s regular rate, up to a $200 per day cap, the regulations explain: a) the employer and employee must mutually agree to substitute employer-provided paid leave; and b) if such an agreement is reached, it appears that the amount of substituted employer-provided paid time off can only be in an amount equal to the unpaid portion of expanded family medical leave.

Small Business Exemption

There are certain exemptions for employers with 49 or fewer from having to provide paid sick leave or expanded family and medical leave to employees to care for his or her child whose school or place of care is closed, or child care provider is unavailable.  The criteria for the exemptions are when:

(1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;

(2) The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or

(3) The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

It should be noted that the small business exemption should be viewed as request specific and not a complete exemption for the organization.  Small employers should also note that employees may still qualify for paid sick leave established by the EPSLA for the remaining five reasons that do not relate to providing childcare for COVID-19 related reasons.  Further, if a leave is denied pursuant to the small business exemption, the employer must document an officer’s determination that criteria were met.

Documentation and Recordkeeping

Before taking leave under the FFCRA, employees are required to provide the following information: (1) the employee’s name; (2) dates for which leave is requested; (3) the qualifying reason for leave; and, (4) an oral or written statement that the employee is unable to work because of the qualified reason for leave.

 

In addition, and based on the reason for leave, the employee may be required to provide further information. Specifically, if requesting leave:

  • Due to a quarantine or isolation order, the employee must provide the employer with the name of the government entity that issued the order
  • As a result of a health care provider recommended quarantine or self-isolation due to COVID-19, the employee must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons
  • To provide care for another individual who is subject to a quarantine or isolation order, the employee must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request
  • In order to provide care for a son or daughter whose school/care facility closed or is unavailable due to COVID-19, the employee must provide the employer with (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that is closed or otherwise unavailable; and, (3) a statement representing that no other suitable person will be caring for the son or daughter while the employee takes leave under either the EPSLA or FMLA Expansion Act

The temporary rules state that for leave taken under the FMLA for an employee's own serious health condition related to COVID-19, or to care for the employee's spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

According to the temporary rules, employers are required to retain all documentation for four years, regardless of whether leave was granted or denied.

DOL rules stipulate that leave for EFMLA cannot exceed a total of 12 weeks of leave during the applicable 12-month period. Any amount of prior FMLA leave an employee uses earlier in that same 12-month period reduces EFMLA entitlement.

Additional ASE Resources
ASE COVID-19 Resources -  For more information on Coronavirus and its impact on employers, visit ASE’s Coronavirus resource page and FAQs.


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