On March 28, 2020, the U.S. Department of Labor (“DOL”) released updated FAQs that provide clarity on the rights and obligations created for employers and employees under the Families First Coronavirus Response Act (“FFCRA”).
FFCRA Effective Date
The FAQs state that the FFCRA’s Emergency Family and Medical Leave Act (“EFMLA”) and the Emergency Paid Sick Leave Act (“ESPLA”), which we summarized here, go into effect on April 1, 2020.
Under the EFMLA, employers must pay an employee for hours the employee would have normally been scheduled to work, even if that amount is more than 40 hours in a week.
Under the EPSLA, employees are entitled to 80 hours of paid sick leave over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. However, the total number of hours paid under the EPSLA is capped at 80.
If an employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee may not use EFMLA or paid sick leave for the hours they are no longer scheduled to work. FFCRA leave is only available for an employee’s scheduled hours.
If an employer furloughs employees because it does not have enough work or business, the employee is not entitled to then take EFMLA leave or paid sick leave. However, that employee may be eligible for unemployment insurance benefits.
If an employer closes their worksite for any reason, their employees are not entitled to EFMLA or paid sick leave while the worksite is closed. It is irrelevant if the closure occurs before or after April 1 or if the employee is on leave when the closure occurs. However, those employees may be eligible for unemployment insurance benefits.
Requesting and Documenting Leave
In the FAQs, the DOL states that employees must provide documentation to support their absences, including documentation in support of their paid sick leave as specified in applicable IRS forms, instructions, and information.
If an employee is taking EFMLA leave, an employer may also require an employee to provide a notice of closure or unavailability from the employee’s child’s school, place of care, or child care provider, due to COVID-19 related issues. This includes a notice that may have been posted on a government, school, or day care website, or emailed to you from an employee or official of the school, place of care, or child care provider.
The DOL also recommends that employers retain this documentation in order to receive tax credits for providing the paid leave.
Unable to Work or Telework
The FAQs explain that being “unable” to work or telework means that the employer has work available for the employee, but the employee is unable to work due to one of the specified reasons for paid leave under the FFCRA.
Employees cannot use existing paid leave benefits during FFCRA leave with their employer’s consent. In addition, employers cannot compel employees to use existing paid leave benefits. Employers and employees can agree to supplement an employee’s FFCRA paid leave with employer-provided benefits to “top up” the deficit in pay that an employee may receive for leave that pays out at two-thirds an employee’s regular rate. However, employers cannot require employees to top up their FFCRA paid leave benefits.
If an employer and employee agree to top up FFCRA benefits, an employer will only receive a tax credit for the amount paid to the employee under the FFCRA.
The FAQs state that employers and employees may agree to intermittent use of FFCRA paid leave benefits. Employees who are teleworking may take intermittent leave for any covered reason, if both the employer and employee agree to the intermittent leave.
However, employees who are working at the employer’s place of business may only take intermittent paid sick leave for school closures or child care unavailability. Once again, both the employer and employee would have to agree to this arrangement.
Employees who are taking paid sick leave for any other reason provided for under the EPSLA may only take such leave in full-day increments.
We will continue to monitor updates on the FFCRA and other coronavirus-related laws. We understand that this is a lot of information for employers to digest. If you have specific questions, please reach out to us so we can assist your business during this difficult time.