U.S. Department of Labor Updates Guidance on Families First Coronavirus Relief Act

The U.S. Department of Labor (“DOL”) has updated its guidance on the Families First Coronavirus Relief Act (“FFCRA”), which was signed into law on March 18, 2020.  (A summary of the law is here.)  Regulations are coming in April.  In the meantime, the DOL’s current resources available are:

1. A tip sheet for employees
2. A tip sheet for employers
3. A Q&A

Issues addressed in the Q&A (many of which were addressed in our earlier FAQs) include:

Effective date of the FFCRA.  The FFCRA and its requirements go into effect on April 1, 2020.

Counting employees under the FFCRA.  In determining employee count, employers must examine whether, as of the time leave is to be taken, they employ fewer than 500 full- and part-time employees within the United States (including Washington, D.C. and any U.S. territory).  All employees must be counted, including temporary employees (even if they are jointly employed by another entity or supplied by a temporary agency) and employees on leave.

Typically, a corporation is considered to be a single employer.  If a corporation has an ownership interest in another corporation, the corporation must analyze whether the two corporations are joint employers under the Fair Labor Standards Act.  If the corporations are joint employers, all their common employees must be included in the employee count.

Finally, individual entities are usually separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (in which case employees of all entities should be counted toward the 500-employee maximum).  This is a fact-intensive, case-by-case analysis.  Consult with your employment attorney if you have questions about whether your company is an integrated employer.

The FFCRA imposes a new sick leave requirement.  The DOL confirmed that employers cannot reduce an employee’s paid sick time entitlement under the FFCRA once it goes into effect.  In other words, the FFCRA imposes a new requirement on employers starting April 1, 2020 and any paid sick leave they provided before that date is not relevant when determining an employee’s entitlement to emergency paid sick leave.

Retroactivity of the FFCRA.  The FFCRA is not retroactive (in other words, employees who were laid off before April 1, 2020 are not entitled to emergency paid sick or medical leave).  Likewise, employers cannot receive a tax credit under the FFCRA for paid leave that was voluntarily provided prior to April 1.

Availability of FFCRA benefits for employer closures.  The DOL confirmed that when an employer closes a worksite (for lack of business or pursuant to a federal, state, or local government order), employees are not eligible to use emergency paid sick or medical leave under the FFCRA during the closure.  This is true even if the employer indicates that the worksite will reopen at some point in the future.  Employees impacted by closures may be eligible for unemployment. 

Availability of FFCRA benefits for employees who are laid off, furloughed, or have their hours reduced.  FFCRA benefits are available only to current employees.  Employees who are laid off or furloughed are no longer eligible for FFCRA benefits but may be eligible for unemployment.  Likewise, employees whose hours are reduced are not able to use FFCRA leave to make up the difference.

Intermittent FFCRA leave.  Employers may, but are not required to, permit employees who are teleworking to take emergency paid sick or medical leave intermittently, using any agreed-upon increment of time.  Employees who are not teleworking may also take emergency paid medical leave on an intermittent basis if their employer agrees, but they must take emergency paid sick leave in full-day increments. 

Supplementing pay for leave under the FFCRA.  Employers may, but are not required to, permit employees to use employer-provided paid time off benefits to supplement pay received during a period of FFCRA leave.  If an employer chooses to do so, however, it cannot require the employee to take the supplemental pay.  Furthermore, employers who choose to pay employees more than they are entitled to under the FFCRA (regardless of whether the supplemental pay comes from employer-provided paid time off benefits or some other source) cannot receive a tax credit in excess of the FFCRA’s statutory limits. 

Documentation for FFCRA leave.  Employers must require employees taking emergency paid sick or medical leave with “appropriate documentation” supporting their need for leave and retain that documentation for tax purposes.  Documentation should include the employee’s name, the qualifying reason for leave, the dates for which leave is requested, and a statement that the employee is unable to work or telework.  Employers should also retain documentation regarding the reason for the leave, which could range from an email from a child care provider, to a newspaper article stating that schools are closed, to a copy of the applicable government order. 

Temporary employee eligibility.  Any employee who has been on the employer’s payroll for at least 30 calendar days (whether as a temporary or regular employee) is eligible for emergency paid medical leave.  (All employees are eligible for emergency paid sick leave.)

Heath insurance continuation.  Employers must continue health coverage for employees taking emergency paid sick or medical leave on the same terms as if the employee was working.

We will continue providing updates as more information becomes available.  If you have questions in the meantime, contact your employment attorney.