DOL Guidance: Families First Coronavirus Response Act
The U.S. Department of Labor (DOL) has issued additional guidance regarding the Families First Coronavirus Response Act (FFCRA).
The DOL says that if an employer furloughs an employee because it does not have enough work or business for the employee, the employee is not entitled to take paid sick leave or expanded family and medical leave regardless of whether their employment has officially ended.
• The DOL defines “unable to work” as: An employer has work for an employee, and one of the COVID-19 qualifying reasons prevents the employee from being able to work, either under normal circumstances at the worksite or by means of telework. If the employer and employee agree that the employee will work the normal number of hours, then the employee is able to work, and leave is not necessary unless a COVID-19 reason prevents the employee from working that schedule. Employees may not use leaves for reduced hours because there is no work to perform – leave is only for a COVID-19 qualifying reason.
• For paid sick leave, the DOL defines a “full-time employee” as an employee who is normally scheduled to work 40 or more hours per week and a “part-time employee” as an employee who is normally scheduled to work less than 40 hours per week. For emergency family leave, pay eligibility depends on the number of hours the employee normally works each week.
• The DOL details who is a healthcare provider and emergency responder in questions 55-57 in the below link.
• The DOL says that employers can require workers to provide additional documentation in support of emergency family and medical leave to care for children whose school or place of care has closed, or if the child care provider is unavailable due to COVID-19 reasons. This could include a notice posted on a government, school, or daycare website, or an email from an official of the school, place of care, or child care provider, as examples.
• The DOL says employers must collect documentation in support of leave “as specified in applicable IRS forms, instructions, and information.” However, to date, the IRS has not released certification forms.
• The DOL confirmed that an employee may take emergency family leave or paid sick leave intermittently while teleworking if the employer agrees. Intermittent leave can be taken in any increment if the employer and employee agree. For example, if you agree on a two-hour increment, an employee could telework in the morning, take intermittent leave from 1 pm – 3 pm and then continue teleworking.
• Emergency paid sick leave in non-telework situations must be taken in full-day increments. It cannot be intermittent unless for the qualifying reason of caring for a child because the school or place of care provider is unavailable due to the public health emergency.
• Emergency family and medical leave may be taken intermittently if the employee and the employer agree. For example, an employee could take leave on Tuesday and Thursdays, and work on Monday, Wednesday, and Friday.
• Once paid sick leave begins, the employee must continue to take the paid sick leave each day until they use either the full amount of paid sick leave or no longer have a reason for taking paid sick leave.
• If an employer closes the worksite while a worker is on paid sick leave or emergency family leave, they must pay for leave used before the closure, but there is no further obligation as of the date of closure.
The DOL encourages employers and employees to collaborate for the best solution to maintain the business and ensure employee safety. Remember, while an employer may pay an employee in excess of the FFCRA requirements, they cannot get tax credits for those amounts in excess of the FFCRA limits.
Some good news – Although employers will face penalties for violations, the DOL announced a period of non-enforcement for employers that make good-faith compliance efforts. Good faith compliance efforts include remedying any violations as soon as practicable, not making willful violations, and providing a written commitment to the DOL to comply with the Act in the future. Check here for further Q&As from the DOL: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
While much confusion remains and further clarity is needed, this updated guidance helps with some of the issues employers have been trying to figure out.