The Families First Coronavirus Response Act FAQs

The FMLA Amendments and Paid Sick Leave Requirements of the New Law

Covered Employers

Question 1. Which employers must comply with the new leave provisions in the EFMLEA and EPSLA? How do I know how many employees I have, and when do I count?

• Answer 1. After December 31, 2020, employers are no longer required to provide leave under the EPSLA or the EFMLEA. The following law provisions now determine whether employers can recover tax credits for leave.

Both the EFMLEA and EPSLA apply to governmental agencies (some federal government employees are excluded). As for private companies, the new laws apply only to employers affecting commerce (see question 3 below) with fewer than 500 employees in aggregate (this includes non-profit organizations and religious organizations according to question 58 of the U.S. Department of Labor’s (DOL) “Families First Coronavirus Response Act: Questions and Answers” guidance) at the time the employee needs to take the leave. This means the definition of “employer” includes employers that have fewer than 50 employees (see question 13 below), even if those employers were not previously covered under the FMLA (traditionally, the FMLA requires an employer to have 50 or more employees over 20 or more calendar weeks in 1 year). The EPSLA requirements are new and use the same definition above for private employers and non-federal governmental entities.

To determine whether a company is covered, add

• • the employees who receive a W-2 and who are working in the United States or a U.S. territory (see question 4) and
  • the persons providing labor or services to the company, even if being paid by another company (including temporary employees (see question 5), leased employees, day laborers, and any “shared” employees (that are working for two different employers, including the one counting). These would be the employer’s joint employees.

This sum is usually the number of relevant employees for determining whether the FFCRA applies to an employer.

Absent the integrated employer test (see question 6), if a W-2 employer still has fewer than 500 employees after adding joint employees, that W-2 employer will still have to comply with the FFCRA. For example, suppose a parent company with 50 employees has two subsidiaries (Company A and Company B). Each has its own EIN, and each pays its employees. Company A has 300 employees but uses 190 temporary employees. Approximately 15 of the parent company employees regularly work for and provide support for Company A. Company A’s total, therefore, is 505 employees. It does not have to comply with the leave provisions of the FFCRA.

However, Company B is much smaller. It has only 150 employees. And, it does not use nearly as many temporary workers. The parent company shares some of its employees who regularly work for Company B, but not enough for the total count to be 500 or more. Company B and the parent company will need to comply with the leave provisions of the FFCRA, unless the parent company, Company A, and Company B are considered an integrated employer. (See question 6 below for a discussion on the integrated employer test.)

Q2. At what point in time should employers take a count?

• A2. Employers should count their employees when the employee’s leave is to be taken. This means if an employer is hovering around 500 employees, it will need to keep a close watch on its employee count. It also means that if, at the time the employee needs leave, the employer has 500 or more employees, but then the headcount subsequently drops and the employee still needs the leave, the employer is now a covered employer and will need to comply. The reverse, however, is not true. If an employee needs leave, and the employer has less than 500 employees when they begin the leave, a subsequent increase in employee headcount will not affect that employee’s right to continue on the leave.

Q3. What if I believe my business does not affect interstate commerce?

• A3. Congress has the power to pass the FFCRA according to the commerce clause of the United States Constitution, which limits the FFCRA’s reach to only those employers operating in interstate commerce. Governmental agencies are assumed to affect commerce. For private employers, “commerce” means “any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include ‘commerce,’ and any ‘industry affecting commerce, as defined in paragraphs (1) and (3) of section 501 of the Labor Management Relations Act of 1947 …” Based on examples provided by the National Labor Relations Board (NLRB), these provisions operate to exclude:
  • Retailers with a gross annual volume of business under $500,000 (“This includes employers in the amusement industry, apartment houses and condominiums, cemeteries, casinos, home construction, hotels and motels, restaurants and private clubs, and taxi services.”)
    • Note: Shopping centers and office buildings have a lower threshold of $100,000
  • Non-retailers are excluded if “the amount of goods sold or services provided by the employer out of state (‘outflow’) or purchased by the employer from out of state (‘inflow’)” (including indirectly, “passing through a third company such as a supplier”) is less than $50,000 per year.
  • Channels of commerce (“trucking and shipping companies, private bus companies, warehouses and packing houses”) with less than $50,000 in gross annual volume
  • “Hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of” less than $250,000 Nursing homes and visiting nurses associations with less than $100,000 gross annual volume
  • “Private and non-profit colleges, universities, and other schools, art museums and symphony orchestras” the threshold is $1 million.”

Of note, however, federal contractors at any level are within NLRB jurisdiction, which would likely mean they are covered by the FFCRA. Also, the NLRB “will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools.” The NLRB “has asserted jurisdiction over employees who work in the operations of a religious organization that did not have a religious character, such as a health care institution.” It is unclear, however, whether this broad interpretation is because the NLRB believes religious organizations do not affect “commerce.”

Q4. Do employees not working in the United States count toward an employer’s total?

• A4. Yes, if they are working in a U.S. territory. However, if they are working in another country, then they do not count towards the total.

Q5. Do temporary employees count toward an employer’s total?

• A5. Yes, employers are required to count all temporary employees in their total, even if paid by a temporary services agency.

The temporary staffing agency and the client company may have different statuses under the FFCRA. For example, a staffing agency with over 500 employees would not be covered under the FFCRA. But if its customer has less than 500 employees, it would be covered under the FFCRA. If the two entities are joint employers of a particular worker, the customer/employer would be obligated to provide leave to the employee under the FFCRA. The DOL states in its FFCRA Q&As, “[t]o determine whether the second employer exercises such control [to be a joint employer], the Department of Labor would consider whether it exercises the power to hire or fire you, supervises and controls your schedule or conditions of employment, determines your rate and method of pay, and maintains your employment records.” Processing the paid leave and recovering the tax credit may require the customer/joint employer to collect documentation that it would not usually keep on a temporary employee (like a leave request form).

Moreover, temporary staffing agencies may want to note that if a client provides temporary employees with EPSLA leave as a joint employer, the temporary staffing agency is prohibited from discharging, disciplining, or discriminating against employees taking such leave, even if the temporary staffing agency is not required to provide EPSLA leave. Similarly, suppose a client offers EFMLEA leave as a joint employer. In that case, the temporary staffing agency is prohibited from interfering with the employee’s ability to take leave and from retaliating against employees for taking such leave, even though it is not required to provide EFMLEA leave.

Q6. What if a subsidiary has fewer than 500 employees, but when its employee count is aggregated with that of its parent company, the total exceeds 500 employees?

• A6. The DOL applies the FMLA’s integrated employer test to the EFMLEA and the EPSLA. This test, if met, means a parent company and its subsidiaries would aggregate their employees into one headcount, even if they have different EINs. In short, the companies would be viewed as one employer—a single enterprise. A parent company and its smaller subsidiaries are considered integrated employers when, on balance, the following four factors suggest they should be integrated:
  1. Whether the companies operate under common management
  2. The amount of interrelation between operations
  3. The amount of centralized control of labor operations
     • Note that this is the most critical factor.
     • Relevant considerations include whether both companies use the same handbooks, have standard policies and procedures, maintain joint management of hiring and firing decisions, centralized human resources departments, etc.
  4. The degree of shared ownership and financial control
     • This is viewed as the least important factor.

If an employer claims that it is an integrated employer to get over the 500-employee threshold, and it is wrong, then it is denying leave to employees who may be entitled to it. If the employer is actually an integrated employer with 500 or more employees and offers its employees leave under the FFCRA anyway, it may be denied the tax credits provided under the law, because only employers of less than 500 employees get the tax credits associated with the leave. Thus, making mistakes using the integrated employer test can be risky.

EFMLEA Leave

Q7. What type of emergency leave does the EFMLEA provide?

• A7. The FFCRA amends the FMLA to grant emergency FMLA leave when an employee is needed to care for a son or daughter when the need is related to a public health emergency (PHE) that results in a school closure, place of care closure, or unavailability of the son or daughter’s normal childcare provider. Of note, the leave offered here is the same as the leave provided for under the EPSLA’s leave entitlement for school and childcare closures (see question 35).

Note: Beginning April 1, 2021, leave is also available under the EFMLEA for all the reasons covered initially only under the EPSLA (a quarantine order, a doctor’s recommendation to quarantine, caring for someone under a quarantine order or doctor’s recommendation to quarantine, COVID-19 symptoms and seeking a diagnosis) and when the employer requires the employee to remain out of work while pursuing a COVID-19 diagnosis or when the employee is obtaining a COVID-19 immunization or dealing with side effects of a COVID-19 vaccination.

Here is more information and relevant definitions related to this leave:

1. 1. The mandatory leave was available between April 1, 2020, and December 31, 2020. Leave provided before April 1, 2020, did not count as EFMLEA leave. (See questions 42 and 48.) Leave after December 31, 2020, is not mandatory but may be eligible for reimbursement through the tax credit.
   2. “Son or daughter” means a minor (or an adult who is 18 or older that is incapable of self-care because of a mental or physical disability) and the employee is his or her parent by virtue of (1) biology; (2) adoption; (3) being a foster parent; (4) being a legal ward; or (5) standing in loco parentis (i.e., the individual provides day-to-day care and financial support).
   3. Needed to care for means there is no other suitable person available to care for the son or daughter during the leave period (which, pursuant to the Internal Revenue Service (IRS) guidance, the employee should state in writing).
      1. Of note, the IRS, in its guidance, indicates that if the child is over 14, the employee should explain that exceptional circumstances exist requiring the employee to provide care.
   4. The leave is offered to employees who are able to work (including telework, if offered) but for needing to care for the son or daughter.
      1. If telework is offered, the employee should explain why he or she is unable to telework.
   5. “School” means elementary or secondary school (up to grade 12). (Note: the DOL has stated that a school offering only virtual learning for a particular period of time or a specific student is still closed for purposes of the FFCRA for that period of time and/or concerning that student.)
   6. “Place of care” means the physical location where care is provided while the employee is usually working. Examples are daycare facilities, preschools, before- and after-school programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.
   7. “Child care provider” means a provider who receives compensation for providing child care services regularly, including a center-based provider, a group home child care provider, or another licensed child care provider. But, it can also mean someone who is not customarily compensated or licensed if it is a family member or friend (such as a neighbor) who regularly cares for the employee’s child.
   8. The applicable federal, state, or local authorities can declare a public health emergency (PHE).
   9. If a school is providing in-person education on only a part-time basis or using a hybrid schedule combining in-person instruction on some days and virtual learning other days, the school is deemed to be “closed” on the days that the child is not scheduled to attend in person and the employee may use leave under the FFCRA on those virtual learning days. The DOL’s updated rules provide that an employee using leave under the FFCRA to care for a child whose school is operating on a hybrid schedule, i.e., in which instruction is conducted in person on some days and times but virtual on other days and times may use leave on this hybrid schedule (and does not require the employer’s agreement to the hybrid schedule).
   10. If a parent has the option to choose between sending his or her child to school in-person or attending virtually, and the parent elects virtual learning, the school is not considered “closed” and EFMLA leave is not available. (If a doctor recommends that the student stay home because of an underlying health condition, the employee may be eligible for two weeks’ of EPSL based on the quarantine recommendation.)

Employers may want to keep in mind that the other provisions of the FMLA are still in effect. A typically covered employer (that has greater than 50 employees in 20 or more calendar weeks) with commonly defined eligible employees (who have worked for one year, worked for 1,250 hours in the year preceding leave, and worked at a worksite that has 50 or more employees within 75 miles) also needs to analyze requests for leave related to COVID-19 under the standard provisions of the FMLA (i.e., an employee’s serious health condition or an employee’s need to care for a first-degree relative with a serious health condition).

Q8. Who is eligible to take EFMLEA leave?

• A8. For EFMLEA, any employee who has been employed (been on payroll) for the 30 calendar days prior to the leave (including any time worked for the company as a temporary employee) is eligible to take EFMLEA leave. If the employee was laid off or otherwise discharged by the employer on or after March 1, 2020, and rehired or otherwise reemployed by the employer on or before December 31, 2020, the employee will be eligible provided the employee was on the employer’s payroll (plus any time worked as a temporary employee for the employer) for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise discharged.

Q9. What qualifies as 30 calendar days for purposes of employee eligibility?

• A9. The employee must have been on payroll (again, any time worked as a temporary employee for the employer also counts as being on payroll) for 30 calendar days, no matter how many days he or she worked.

Q10. Are healthcare workers and emergency responders eligible to take EFMLEA leave?

• A10. Note: After December 31, 2020, employers are not required to offer EFMLEA leave to any employees. The information below describes treatment between April 1, 2020, and December 31, 2020.

Under the FFCRA, Congress expressly stated that an employer “may elect to exclude” health care providers and emergency responders from applying the EFMLEA and the EPSL. It is important to note that the “health care provider” or “emergency responder” is the employee, not the employer. Therefore, employers can give leave under the EFMLEA or EPSLA to healthcare providers and emergency responders under current regulations. Moreover, the language of the FFCRA appears to permit employers to make case-by-case determinations. The DOL has confirmed in its updated Q&As that “[f]or example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.”

Note, the FFCRA also gives the DOL the right to issue regulations deeming “health care providers” and “emergency responders” ineligible to take the leave, which would mean these employees may not get the leave at all. The DOL did not do that. Instead, the DOL defined the relevant terms.

Under the EPSLA, Congress also gave the DOL the right “to exclude certain healthcare providers and emergency responders from the definition of employee under [the EPSLA], including by allowing the employer of such healthcare providers and emergency responders to opt-out.” (Emphasis added.) The DOL appears to have done neither. It defined the terms and left the decision to exclude healthcare providers and emergency responders up to employers.

Q11. Who is a healthcare provider?

• A11. The FMLA defines the term “health care provider” as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or … (B) any other person determined by the Secretary to be capable of providing health care services.” According to the DOL, these are still health care providers for purposes of certifying certain types of leave under the EPSLA, but it is not the definition the DOL is using for purposes of deciding which employees may be exempted from getting leave under the FFCRA. For purposes of which employees an employer may exclude from the EFMLEA and/or EPSLA, the definition from the new temporary regulations, updated in response to a decision by a court in the Southern District of New York, is as follows:

Any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

826.30(c)(1)(B). The rules clarify that:

• • “Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.”
  • “Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.”
  • “Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.”
  • “Services that are integrated with and necessary to diagnostic, preventive, or treatment

services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

The DOL rule identifies employees who could qualify for the exemption, to include only:

• • “Nurses, nurse assistants, medical technicians, and any other persons who directly provide” [diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care];
  • “Employees providing services described … under the supervision, order, or direction of, or providing direct assistance to a person described [above]”;
  • “Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.”

826.30(c)(1)(B)(ii). The DOL specifies that employees who do not provide “health care services” as described in the rules are not health care providers under the rule, even if their work affects the provision of health care services, including “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” The DOL also clarified that the location of an employee’s work does not determine whether the employee qualifies as a “health care provider.”

The DOL guidance advises to use the above definition judiciously to minimize the spread of COVID-19.

Of note, as of August 3, 2020, the United States District Court for the Southern District of New York struck down the DOL’s rule defining the term “health care provider.” The DOL responded to the court’s decision by updating its rules implementing the FFCRA, effective September 16, 2020, to provide the definition of “health care provider” described above. If an employee who did not meet the definition of “health care provider” under the FMLA was deemed exempt from leave under the FFCRA between August 3, 2020, and September 16, 2020, employers may want to consider whether leave was available under the law.”

Q12. Who is an emergency responder?

• A12. The DOL has defined “emergency responder” as follows under the temporary regulations:

Anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

The guidance advises judicious use of this definition to minimize the spread of COVID-19. Of note, several members of Congress have complained that the DOL’s definition is too expansive and undermines the FFCRA.

Q13. Are employees of small businesses (i.e., those with fewer than 50 employees) eligible to take EFMLEA leave?

• A13. The DOL’s temporary regulations exempt small businesses with fewer than 50 employees, including a religious or non-profit organization, from having to provide EFMLEA leave, or the EPSLA leave for school or childcare closures (which mirrors the EFMLEA) when the imposition of such leave requirements would jeopardize the ongoing viability of the business. The DOL’s temporary regulations allow for this exemption if an authorized officer of the business has determined that:
  1. Providing the leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;”
  2. “The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or”
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.”

Remember, this exception is only for the EFMLEA and EPSLA leave for situations in which the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions. To elect this small business exemption, the employer must document that a determination has been made pursuant to the above criteria. The employer is not required to send such documentation to the DOL, but should retain the records in its files for four years.

Q14. Is EFMLEA leave paid or unpaid?

• A14. After April 1, 2021, all leave under the EFMLEA is paid leave, subject to the statutory cap of $200 per day and $12,000 in the aggregate.

The following applies to leave between April 1, 2020, and December 31, 2021, under the original EFMLEA.

It is both. The first two weeks (usually ten days) of leave are unpaid. The FFCRA also includes EPSLA leave (for school and childcare closures) that covers the same event, covering the first two weeks unless the employee’s EPSLA leave has been exhausted for other reasons. The EPSLA provides for leave in a much more comprehensive array of scenarios related to COVID-19 than the EFMLEA does, so it could be exhausted before an employee seeks EFMLEA leave. Alternatively, the employee can substitute any other form of available paid leave he or she may have during the first ten days. (See question 35 below.)

After the first 2 weeks of EFMLEA (Congress said 10 days, but the concept of days does not align with the FMLA), the EFMLEA offers paid leave for up to another 10 weeks (depending upon need and whether the employee has already exhausted some FMLA leave for other qualifying reasons). During the last 10 weeks of leave, an employer must pay the employee two-thirds of the employee’s average rate of pay (i.e., total compensation other than discretionary bonuses) over the past six months (see question 39), subject to a statutory cap of $200 per day and $10,000 total (the aggregate maximum of all paid FMLA leave under this provision). An employer may choose to pay more, but tax credits will be limited to the amount required. Employers with unions can use multiemployer collective bargaining agreement plans to pay out these amounts so long as the plans are amended to make the payments provided, and the employer funds the plan to pay for the leave.

Q15. If the EPSLA is not available to cover the first two weeks an employee is out, can an employee use other paid leave to cover that time?

• A15. Note: After April 1, 2021, leave during the EFMLEA is paid. Prior to April 1, 2021, yes. An employee can elect to use other paid leave that is applicable, although these other benefits would not be eligible for tax credits. An employer may not require an employee to use other paid leave provided by the employer during this two-week period. If EPSLA is not available, the initial two weeks of EFMLEA may be unpaid.

The leave an employee uses during the first 10 days must be applicable to the circumstances surrounding the leave request. Normal sick leave is probably not available for use if no one is sick. An employer can liberally amend its normal sick leave policy to make it applicable, but unless it does, regular sick leave is likely not available.

Q16. Can other paid leave be used to compensate employees at their regular salaries or rates (sometimes called a “true -up”)?

• A16. Basically, yes, but the rules are different for the EPSLA and the EFMLEA. If the EPSLA leave for school and childcare closures is being used for this purpose, it is paid at the same rate as EFMLEA leave. The DOL states that an employer and employee can agree to allow the employee to use another available paid leave to bring his or her pay to 100 percent of the employee’s wages. Once the EFMLEA starts providing pay (on the third week of an employee’s leave), however, the rule switches. That is, either the employer or the employee can demand a “true-up” by exhausting other forms of leave.

Q17. Is all FMLA leave now paid leave?

• A17. No, only EFMLEA leave is paid. The usual rules apply for traditional FMLA leave.

Q18. Can an employee supplement the pay provisions of the EFMLEA and the EPSLA with any paid leave he or she may have accrued?

• A18. See questions 15 and 16.

Q19. Are employees entitled to reinstatement to their position under the EFMLEA and EPSLA?

• A19. Except as discussed below, normal reinstatement rules apply to most employers. This means that an employee who is on FMLA leave is entitled to no greater protection from layoffs, furloughs, terminations, or otherwise than he or she would have had but for taking the leave. Therefore, provided an employer is not influenced by the employee being on leave, an employee could be furloughed or discharged if the employer implements a reduction in force.

If a layoff occurs, the employee’s ability to take leave (and the pay that comes with it) effectively ends, and he or she may be entitled to unemployment benefits (which may be enhanced under state action to provide funds according to an executive order). Additionally, because standard reinstatement rules under the FMLA apply, a “key” employee (that is, a salaried employee who is a top 10 percent wage earner within 75 miles) may be denied reinstatement if it would result in grievous economic injury to reinstate him or her. (See question 43 of the DOL’s Q&As on this topic.)

Additionally, Congress enacted specific rules for employers with fewer than 25 employees, which are more restrictive than classic reinstatement rules. Employers with fewer than 25 employees may not be required to reinstate an employee if all the following elements are proper:

1. 1. “The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions” that affect employment and are caused by the public health emergency. (This exception is narrower than the general rule on reinstatement.)
   2. “The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.”
   3. If the employee’s job is gone, and the employer cannot provide a substantially similar position, the employer must make reasonable efforts over a period of one year after the employee’s EFMLEA leave concludes to contact the employee if a substantially equivalent position becomes available.

Q20. How much EFMLEA leave is allowed?

• A20. EFMLEA leave is just another form of FMLA leave, and the FFCRA lumps it together with all other forms of leave—so an employee gets a total of 12 weeks in the aggregate. Any FMLA leave an employee has already taken in the employer’s FMLA year reduces the amount of FMLA leave that employee has available under EFMLEA. Thus, EFMLEA leave is limited to 12 weeks, minus any other FMLA leave taken by an employee during the employer’s FMLA year. In addition, any amount of EFMLEA leave an employee uses will reduce the amount of FMLA leave an employee can take for other reasons during the applicable FMLA year.

EFMLEA leave is treated like FMLA leave, and the employee is entitled to use it while the law is in effect, provided other requirements are met. Any EFMLEA leave taken impacts the employee’s ability to take FMLA leave for other reasons thereafter (especially if the employer is using a rolling calendar year). The mandatory leave requirements under the FFCRA expired on December 31, 2020, but EFMLEA leave is still available at an employer’s discretion. Even though the law is essentially a tax credit law after December 31, 2021, nothing on the face of the amended law alters the structure that causes EFMLEA leave to count against the total FMLA leave bank. There is some speculation among commenters that EFMLEA leave should no longer count against the FMLA bank, but until the DOL issues further guidance, it appears that it does.

Q21. How is the amount of EFMLEA leave taken calculated?

• A21. FMLA leave is calculated in weeks. An employee has a total of 12 weeks to use (including other forms of FMLA) during the employer’s FMLA year. Employees who work for employers to which the FMLA does not apply are entitled to 12 weeks of EFMLEA leave. If an employee is taking EFMLEA leave continuously (not intermittently), the calculation is fairly simple: Count down the weeks of leave taken. In this scenario, the calculation rules below are really to determine how much to pay the employee.

For purposes of pay, and where the employee is taking EFMLEA intermittently, the employee’s hours are the “number of hours the eligible employee is normally scheduled to work on that workday” or workweek. If the employee has a work schedule that varies to such an extent that the employer is unable to determine the number of hours the employee would have worked, then the rules are as follows:

• • If the employee has been employed for at least six months, the employee’s workweek is calculated by adding all hours worked to the leave the employee has taken for the last six months and dividing by 26 weeks (which is half of 1 year).
  • If the employee has not worked for at least six months, employers should base the workweek on any agreement entered into at hiring, regarding the expected number of hours the employee was supposed to work. If there was no such agreement or understanding, then employers can calculate the employee’s workweek for the duration of time the employee has been employed using the above method.

Q22. Can an employee take EFMLEA leave intermittently?

• A22. Employees may take intermittent leave under the FMLA for certain types of leave by statute. The FFCRA does not have a statutory designation about whether the leave may be taken intermittently, but the DOL states that intermittent leave (or reduced schedule leave) is permitted by agreement between the employer and employee if and only if intermittent leave is appropriate under the circumstances. Neither party can mandate or demand intermittent leave.

Notably, the DOL has said that leave for a hybrid school schedule does not constitute intermittent leave:

[t]he employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent…. For the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day) and then take leave again when a new qualifying cause arises (i.e., school closes again the day after that).

Of note, the rule allowing intermittent leave by agreement would apply under the EPSLA for leave to care for a child home from school. But, for any other reasons for taking EPSLA leave, intermittent leave is not appropriate or permitted unless the employer offers telework, the employee accepts, and both agree to take the leave intermittently. Such an agreement can be memorialized by a writing, or the parties can come to a clear understanding. If the parties come to an agreement, intermittent leave can be taken in whatever increments work for both parties. Importantly, time worked is not leave, so any time worked will not count towards EPSLA or EFMLEA leave.<="" li="">

Q23. Are spouses who work together for the same employer required to share EFMLEA?

• A23. The FFCRA does not address this issue. The rule that narrows FMLA usage for spouses who work for the same employer is statutory and only applicable to certain types of FMLA leave. This rule does not apply to the EFMLEA or the EPSLA.

Q24. What about leave that employees have already been granted, and what if an employer wants to provide EFMLEA leave or EPSLA leave and the pay associated with it?

• A24. The DOL and courts have consistently stated that leave given that is not FMLA leave cannot be considered FMLA leave. Accordingly, any leave that an employer gave an employee prior to when the FFCRA took effect does not count toward the total amount of leave to which the employee is entitled under the EFMLEA and EPSLA. The same is true of the reasons for leave that were added as of April 1, 2021, including vaccination. Leave provided for those reasons before April 1, 2021, would not be counted as EFMLEA leave.

The same is true for an employer with 500 or more employees that wants to offer employees the functional equivalent of EFMLEA leave. Nothing stops a large employer from providing leave similar to EFMLEA leave (and some state and local laws require it), but it will not be eligible to receive the tax credits for providing that leave.

The same is true for the EPSLA. The FFCRA made very clear (as does the DOL guidance and regulations), that any leave provided to an employee prior to April 1, 2020, for reasons related to the six types of EPSLA leave will not count towards the sick leave entitlements offered by the FFRCA. The FFCRA and the regulations also make clear that EPSLA leave is in addition to any type of leave the employer is already providing, and the employer cannot comply with the EPSLA by using already existing leave.

Q25. What notice do covered employers need to give employees?

• A25. See question 52.

Q26. What if an employee is furloughed? Does he or she qualify for leave?

• A26. According to the DOL, furloughed employees do not qualify for leave regardless of whether the furlough started before April 1, 2020. An employee who is furloughed, even if the furlough is considered temporary, will not be entitled to take leave once furloughed. The DOL’s position is that the EPSLA and EFMLEA are designed to cover hours the employee is expected to work. If an employee is not expected to work (because of a layoff, furlough, temporary business closure, or otherwise) the employee does not need leave due to an FFCRA-covered reason and thus is not entitled to leave under the law.

Of note, as of August 3, 2020, the United States District Court for the Southern District of New York struck down the DOL’s rule that employees on furlough for whom work is unavailable are not eligible for leave under the FFCRA. The DOL responded to the court’s decision by updating its rules implementing the FFCRA, effective September 16, 2020, to clarify that employees are not eligible under any of the bases for FFCRA leave, if the employer does not have work available for them. If an employee furloughed requested leave under the FFCRA between August 3, 2020, and September 16, 2020, employers may want to consider whether leave was available under the law for that period.

Q27. What are the penalties for violating the EFMLEA provisions of the FFCRA?

• A27. The penalties for failure to adhere to the provisions of the amendment are the same as those under the FMLA. Both companies and individuals can be sued by private individuals affected or by the DOL. However, the FFCRA includes a provision (section 3104) that states that an employer that does not meet the normal covered employer test under the FMLA (i.e., an employer that does not have 50 or more employees within 20 or more workweeks during this calendar year or last calendar year), is not subject to private civil actions by employees. However, these employers would be subject to private civil actions under the jurisdiction of the DOL, which could bring an enforcement action for violations.

Q28. Can employees qualify for leave under the FFCRA to care for a child whose school or place of care is closed due to COVID-19 even if they have been teleworking successfully?

• A28. Yes. The DOL has stated in its Q&As that an employee may be eligible for leave under the FFCRA to care for a child if, for example, the employee determines that he or she has not “been able to care effectively for the children while teleworking” or to allow a spouse to work or telework.

Employers may “ask the employee to note any changed circumstances … as part of explaining why the employee is unable to work.” This is arguably required to substantiate the leave, because leave under the FFCRA is not available if the employee is able to telework. However, the DOL notes that employers should exercise caution in making such inquiries to avoid denying leave inappropriately, which could give rise to a claim of interference with the employee’s rights.

Q29. Can an employee use leave under the FFCRA to care for a child when school is available virtually some or all of the time?

• A29. Yes. When school is only available virtually and the child cannot attend in person, the FFCRA would apply. This may be the case if a school is providing in-person education on a reduced schedule, part-time basis, or a hybrid schedule. An employer’s agreement is not required for employees to use leave on such a hybrid schedule. However, if the school is open but an employee elects a virtual option, the DOL has confirmed in its Q&A that EFMLEA leave would not be available, because the school is not closed.

The IRS guidance regarding tax credits under the FFCRA requires employers to maintain a statement from the employee identifying “the name of the school that has closed or place of care that is unavailable.” So, to substantiate the claim for a tax credit, if an employer knows that a summer program has ended or a school or child care provider has reopened, it may want to ask the employee to complete a new request form to identify the provider that is unavailable for the school year.<="" li="">

EPSLA Leave

Q30. Which employers are covered?

• A30. See questions 1 and 3-6.

Q31. Are healthcare workers and emergency responders eligible to take EPSLA leave?

• A31. See questions 10-12.

Q32. Are employees of small businesses (i.e., those with fewer than 50 employees) eligible to take EPSLA leave?

• A32. See question 13. Also note that leave after December 31, 2020, is not mandatory. Regarding leave before January 1, 2021, the small business exemption applies to the EPSLA only in the limited context of leave when the employee is caring for a son or daughter whose school or place of care is closed, or if the child care provider is unavailable due to the COVID-19 outbreak. (See question 37.) Employers that meet the qualifications for the small business exemption described in question 13 above must nevertheless offer the other types of leave available under the EPLSA and must provide the required notices. (See question 51.)

Q33. Do employees not working in the United States count toward the employee total, and do they get EPSLA leave?

• A33. No. See question 4.

Q34. Can an employer with 500 or more employees offer EPSLA leave?

• A34. An employer with 500 or more employees can offer paid leave and often must do so given state and local requirements. However, employers with 500 or more employees are not required to provide EPSLA leave under the act and are not eligible for tax credits provided by the FFCRA.

Q35. What if a subsidiary has fewer than 500 employees, but when aggregated with the parent, it exceeds 500 employees? Does the FFCRA apply to that subsidiary?

• A35. See question 6.

Q36. Which employees are eligible for EPSLA leave?

• A36. In short, all employees of covered employers who are not subject to the health care worker emergency responder exemption or the small business exemption are eligible, regardless of length of employment. Unlike the EFMLEA, the EPSLA does not have a requirement that employees have worked a specified number of calendar days, fulfilled an hours-of-service requirement, or fall within a geographic area prior to eligibility.

The EPSLA is also different than other state and local paid sick leave laws that typically have a waiting period prior to employees’ eligibility to use accrued paid sick leave. Likewise, unlike many state and local paid sick leave laws, EPSLA leave does not provide different amounts of available sick leave based upon the size of a covered employer.

Q37. When must leave be provided, and what does the EPSLA provide?

• A37.

After December 31, 2021, leave is no longer mandatory under the EPSLA. Between April 1, 2020, and December 31, 2020, employers were required to offer employees paid sick leave according to the EPSLA. Any leave an employer provided to its employees before April 1, 2020, does not count as leave provided under the EPSLA. (See questions 13, 32, and 46 of the DOL’s Q&As.) The EPSLA offers eligible employees with EPSLA leave in the number of hours that are equivalent to 2 weeks (80 hours for full-time employees) of paid leave, which bank of 2 weeks will refresh as of April 1, 2021, for any of the following reasons:

1. 1. Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
      1. Note, if the order is a closure or a “shelter in place” order, and the employer is deemed an essential business, then the order may not stop the employee from working.
      2. Suppose the order is a closure order, and the company must shut down business operations (meaning that the company does not have a job for employees to perform). In that case, employees are not entitled to EPSLA leave. Those employees may, however, be eligible to receive unemployment benefits.
      3. The type of order that might trigger this provision would be, for example, a government issued mandatory quarantine of all persons who are traveling from another country. In that case, an employee who has traveled internationally and therefore must self-quarantine, would be eligible for leave under this provision, because the employer is still open and has a job for the employee to perform, but the employee is unable to do it because of the order.
   2. Self-Quarantine—when a health care provider has advised the employee to self-quarantine due to concerns related to COVID-19;
      1. This provision is applicable when a healthcare provider (as defined by the FMLA) suggests an employee to self-quarantine based on the belief that
         • the employee has COVID-19;
         • the employee may have COVID-19;
         • the employee is particularly vulnerable to COVID-19; and
      2. but for the healthcare provider’s advice, the employee could work or telework (if offered).
   3. COVID-19 Symptoms—when the employee is experiencing symptoms such as a fever, dry cough, shortness of breath, or other COVID-19 symptoms recognized by the U.S. Centers for Disease Control and Prevention and is seeking a medical diagnosis;
      1. Under this provision, any EPSLA leave available is limited to the time the employee cannot work because he or she is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19. Employees with a positive test result may be eligible for EPSLA leave due to a self-quarantine recommended by a healthcare provider or an isolation or quarantine order from the government. (See “Self-Quarantine” above.)
   4. Care for Others—when the employee is caring for an individual who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19;
      1. “Individual” means an immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for that individual when quarantined or self-quarantined.
      2. The employee may not take leave under this provision unless, but for the need to care for the individual, the employee would be able to work (or telework if offered).
   5. School/Childcare Closure—when the employee cares for a son or daughter because the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable due to COVID-19 precautions.
      1. Note that this is the only provision that overlaps with the EFMLEA.
      2. See question 7 above for the requirements for taking the leave.
   6. Similar Conditions—when the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
      1. These conditions have not been identified yet.
   7. After April 1, 2021:
      1. Leave for COVID-19 Testing Required by Employer—when the employee is seeking or awaiting the results of a test for or diagnosis of COVID-19 at the employer’s request.
      2. COVID-19 Vaccination—the employee is obtaining immunization related to COVID–19 or recovering from any injury, disability, illness, or condition related to such vaccination.

Note employees get only one tranche of leave. If an employee takes 80 hours of sick leave for one reason, he or she cannot accept additional leave for a different reason. (Question 9 of the DOL’s Q&As covers this topic.) Additionally, if an employee takes EPSLA leave while working for one employer, he or she will not get it should the employee go to work for a different employer.Q36. May employees be required to use other paid leave before EPSLA leave under FFCRA, or can the employer use already existing paid sick leave to comply with the EPSLA?

Q38. May employees be required to use other paid leave before EPSLA leave under FFCRA, or can the employer use already existing paid sick leave to comply with the EPSLA?

• A38. No. An employer may not require employees to use other paid leave before they use EPSLA leave.

Q39. Can employers require employees to look for replacements to do their work while they are out on EPSLA leave?

• A39. Consistent with prior state and local paid sick leave requirements, the FFCRA prohibits employers from requiring employees to search for or find a replacement employee to cover their EPSLA leave hours.

Q40. Can an employee take EPSLA leave intermittently?

• A40. See question 22. Intermittent leave is available only by agreement unless the Southern District of New York opinion applies to void the DOL rule and only during telework or for leave to care for a child whose school or childcare provider is closed due to COVID-19. The DOL’s temporary regulations clarify that intermittent leave under the EPSLA is subject to three primary considerations: (1) the FFCRA’s objective in slowing the spread of COVID-19; (2) an agreement between the employer and the employee concerning intermittent leave (i.e., employers are never required to allow intermittent leave); and (3) whether the employer allows or directs the employee to telework.

Employees who telework

Suppose an employer directs or allows an employee to telework, and the employer and the employee agree. In that case, the employee may take EPSLA leave intermittently while teleworking because the employee presents no risk of spreading COVID-19. On the other hand, employees who do not telework may take EPSLA leave intermittently, upon agreement, only where there is minimal risk of spreading COVID-19 at the employer’s worksite. As such, employees who do not telework may take EPSLA leave only to care for a son or daughter whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19. (See question 35 above.) In this context, the absence of confirmed or suspected COVID-19 in the employee’s household reduces the risk that the employee will spread COVID-19 by reporting to the employer’s worksite while taking intermittent paid leave. This is not true, however, when the employee takes paid sick leave for other qualifying reasons.

Employees who do not telework

Employees who report to an employer’s worksite may not take EPSLA leave intermittently, even with the employer’s agreement, if the leave is taken for any EPSLA leave purposes other than to care for a son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19. (See question 39.) The reason is that the other EPSLA leave purposes create an unacceptably high risk of further COVID-19 spread. As such, employees who continue to report to an employer’s worksite once they begin taking EPSLA leave for any qualifying reason or reasons must exhaust available EPSLA leave or may return only when the employee no longer has a qualifying reason for taking EPSLA leave.

Leave for hybrid school schedules.

The DOL has said that if a “child’s school, place of care, or child care provider was closed or unavailable on only Monday, Wednesday, and Friday, as opposed to the entire week, then [an employee] would not need to take intermittent leave if working on the schedule in the example above. Each day of closure or unavailability is a separate reason for leave; thus, [the employee] would not need to take leave intermittently for a single reason. As such, [an employee] would not need employer permission to take paid leave on just the days of closure or unavailability.”

Q41. What must eligible employees be paid under the EPSLA?

• A41. Suppose an employee is eligible for EPSLA leave due to his or her own inability to work (i.e., for reasons 1-3 in question 37). In that case, the employer must compensate that employee for any paid sick time he or she takes at the higher of the employee’s average regular rate, the federal minimum wage, or the local minimum wage. To determine the employee’s average regular rate, employers can use the Fair Labor Standard Act (FLSA) methods (subject to the six-month rule below) to determine an employee’s regular rate of pay (i.e., combine his or her hourly wage or salary, plus any non-discretionary wages, such as commissions, tips, piece rates).

An employer should look back over the past six months to determine the employee’s average regular rate. If the employee has not been working for six months, the employer should look back over the employee’s entire employment period. Once the employer determines the employee’s total compensation, it can divide that number by the number of hours the employee worked to determine the employee’s wages for purposes of the regular rate of pay. This amount, however, is capped at $511 per day ($5,110 in the aggregate).

For employees absent from work to care for others (reasons 4-6 in question 37), employers must compensate them for any paid sick time they take at two-thirds of their average regular pay rate. This amount, however, is capped at $200 per day ($2,000 in the aggregate). Unlike the amendments to the FMLA in the FFCRA, the EPSLA does not contain any provision for an initial period of unpaid leave.

Full-time employees—i.e., those scheduled to work 40 hours or more per week (see questions 9 and 48 of the DOL’s Q&As) are eligible for 80 hours of pay. Employees working or scheduled to work less than 40 hours per week are eligible for the number of hours they typically work or are scheduled to work in a two-week period. (See questions 9 and 49 of the DOL’s Q&As.)

If these employees’ typically scheduled hours are unknown or their schedules vary, employers should use a six-month average to calculate their average daily hours. Suppose the employee has not been employed for six months. In that case, employers may use the number of hours the employee agreed to work upon hiring or, if there was no such agreement, employers may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment. (See question 5 of the DOL’s Q&As.) However, suppose the employer reduces an employee’s scheduled hours (or furloughs the employee temporarily) due to a lack of work. In that case, the employee may not be paid for hours the employee is not scheduled to work. (See question 28 of the DOL’s Q&As). In these situations, for purposes of EPSLA leave, the employee’s leave is an hours bank. The hours are not adjusted if the schedule is reduced, but the employee can only use those hours for work actually scheduled.

Because EPSLA leave is an hours bank, if an employee misses overtime work that he or she would have otherwise worked but for the leave, his or her EPSLA leave hours bank will be reduced, and the amount of pay for the hours missed must be provided. (See question 6 of the DOL’s Q&As.)

Q42. What about employees with varying schedules?

• A42. See question 41.

Q43. What notice must employees give to request leave?

• A43. The FFCRA requires employees to notify employers of their request to take leave as soon as practicable. Suppose an employee fails to give proper notice. In that case, the employer should give him or her notice of the failure and an opportunity to provide the required documentation before denying the leave request. A spouse, adult family members, or other responsible party can give notice. The contents of the notice should be enough to give the employer knowledge that the employee may qualify for leave.

According to the DOL’s updated rules, effective September 16, 2020, notice of the need for EPSL may not be required in advance and only after the first workday for which an employee takes leave. After the first workday, it is reasonable for the employer to require notice as soon as practicable.

Q44. What documentation may an employer require from an employee to support a request for EPSL?

• A44. The DOL’s updated rules, effective September 16, 2020, provide that documentation in support of leave under the FFCRA should be provided “as soon as practicable, which in most cases will be when the Employee provides notice [of the need for leave].” The DOL’s guidance in connection with its temporary rule provides that documentation in support of a request for leave under the FFCRA “must include a signed statement containing the following information: (1) The employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.” The employee must provide additional documentation depending on the qualifying reason for the leave. The DOL went on to explain, “[a]n employee requesting paid sick leave [based on a government quarantine or isolation order] must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave [based on a health care provider’s recommendation to quarantine] must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.”

An employee requesting paid sick leave to care for an individual must provide either (1) the name of 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. An employee requesting to take paid sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave. The DOL temporary rule also allows employers to collect any other documentation needed to substantiate a claim for a tax credit with the IRS. The IRS guidance states, “with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.”

Employers must retain documentation supporting leave or tax credits under the FFCRA for four years.

The DOL stated in its Q&As that employers may not require employees to provide further documentation or certification from a health care provider to confirm that they sought a diagnosis or treatment for COVID-19 symptoms. The employer can only require written information identifying the need for leave and the date for a test or doctor’s appointment.

However, if an employee requests another type of leave, like FMLA or another paid leave benefit concurrently, employers may require the documentation typically asked in connection with those leaves.

Q45. What if an employer previously provided paid sick leave?

• A45. EPSLA leave under the FFCRA is in addition to any paid sick leave already offered by an employer (including paid sick leave available under state and local laws). Even if an employer had a generous paid sick leave policy offering more than the 80 hours required by the act, the act required employers to offer employees additional EPSLA leave for COVID-19 purposes between April 1, 2020, and December 31, 2020. (See question 32 of the DOL’s Q&As.)<="" li="">

Q46. Does the FFCRA provide employees with job protection?

• A46. The DOL has adopted the FMLA’s restoration rules for EPSLA leave. (See question 19.) The FFCRA does not protect employees from layoffs, furloughs, etc. If an employer can show that an employee would not have been employed when reinstatement is requested, reinstatement is not required.

Q47. Does unused EPSLA leave carry over to subsequent years?

• A47. No. The original bank of leave was to expire on December 31, 2020. It was extended voluntarily through March 31, 2021, but does not carry over after that date. As of April 1, 2021, employers may offer a refreshed bank of 10 days of EPSLA leave, but that leave currently expires September 30, 2021.

Q48. Must accrued and unused EPSLA leave be paid to employees upon termination or resignation?

• A48. No. Consistent with prior state and local paid sick leave requirements, the act does not require employers to pay out unused EPSLA leave to eligible employees at termination, resignation, retirement, or other separation from employment.

Q49. What are the penalties for violations?

• A49. Employers that do not provide EPSLA leave under the FFCRA to eligible employees when required are subject to damages and penalties as under the FLSA for minimum wage violations, including unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

Employers that unlawfully discharge, discipline, or otherwise discriminate against an eligible employee under the FFCRA are subject to injunctive relief under the FLSA, including reinstatement, as well as damages and penalties for unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

Provisions Applicable to Both the EFMLEA and the EPSLA

Q50. What is the effective date for EFMLEA and EPSLA leave?

• A50. The FFCRA went into effect on April 1, 2020. The EFMLEA and EPSLA went into effect on April 1, 2020, and the mandatory leave expired on December 31, 2020. The law was extended voluntarily through March 31, 2021, and extended further and expanded through September 30, 2021.

Note the Southern District of New York vacated certain of the DOL’s rules implementing the FFCRA as of August 3, 2020, and the DOL issued new rules effective September 16, 2020. These rules relate to the use of leave during a furlough, the use of intermittent leave, the timing of providing documentation in support of leave, and the definition of “health care provider” for purposes of the exemption from FFCRA leave.

Q51. Are the EPSLA’s and the EFMLEA’s requirements retroactive?

• A51. No. (See question 13 of the DOL’s Q&As.) Additionally, employers are not entitled to tax credits for leave given before April 1, 2020.

Q52. Are there any notice posting requirements?

• A52. The FFCRA requires eligible employers to maintain, in a conspicuous location, where notices to employees are customarily posted, in all work locations, a notice prepared or approved by the Secretary of Labor. In addition, and particularly given the prevalence of employees working remotely due to COVID-19, employers may provide notice through email or direct mail to employees or by posting on an employee-facing intranet or external website. The model notice posting applicable to private employers is now available in English, Spanish, and Korean. The DOL permits emailing the poster to those already teleworking.

Of note, employers with fewer than 500 employees who employ all healthcare providers and emergency responders are still covered employers and must post the notice. Additionally, employers of fewer than 50 employees who intend to deny leave for school/childcare closures are also still covered employers. So, they must still offer employees leave for quarantines and isolation orders, self-quarantines, employees experiencing COVID-19 symptoms, employees caring for others, and employees experiencing similar symptoms as one would experience if he or she had COVID-19 (see question 37), and must post or issue a notice.

Q53. What tax credits are available to employers?

• A53. Fortunately, payments for EPSLA and EFMLEA leave and benefit costs during periods of leave under the FFCRA are subject to tax credits. Employers are entitled to a refundable tax credit equal to 100 percent of the qualified EPSLA and EFMLEA leave wages paid to eligible employees each quarter. Currently, it does not appear employers will be entitled to any tax credits for any EPSLA leave payments made before the effective date of the EPSLA. Note that the IRS has provided guidance on tax credits under the FFCRA.

Q54. How should an employer treat an employee’s benefits while on leave?

• A54. The FMLA benefit protections are in place, and employers should follow them for EFMLEA leave. (See question 30 of the DOL’s Q&As.) The DOL also indicates that employee benefits should be maintained while on EPSLA leave. (See question 30 of the DOL’s Q&As.)

If the employee already has healthcare, the employer should treat the employee as if he or she is working. For employees who are not yet eligible for benefits (because they were recently hired, for example), employers should count the time away from work towards eligibility if they are on leave for their health condition. (See question 30 of the DOL’s Q&As citing non-discrimination rules under the Health Insurance Portability and Accountability Act (HIPAA).) For reasons other than the employee’s own health condition, HIPAA non-discrimination rules do not apply, and the FMLA discusses benefits being “maintained.” So, for EPSLA leave involving leave to care for others, and for EFMLEA leave, employers should follow the plan’s eligibility rules.

Q55. Do the EPSLA and EFMLEA contain non-discrimination requirements?

• A55. Yes. As of April 1, 2021, the law imposes non-discrimination rules, so employers may not discriminate in offering leave in favor of highly compensated or full-time employees or based on tenure.

Q56. May employers provide less than the full amount of leave permitted under the FFCRA?

• A56. After December 31, 2021, leave became voluntary for employers. So, an employer could provide one type of leave and not the other or a shorter period of leave than the amount for which the employer could recover the tax credit. If an employer intends to offer leave on a more limited basis, it may be prudent to inform employees of any limits that the employer will impose. If an employer is inconsistent, without a neutral explanation for any differences in providing leave, it may face discrimination claims. Finally, the law also requires employers to follow all provisions under the applicable law to remain eligible for the tax credit. This would seem to include the requirements as to employer and employee eligibility, how to calculate the rate of pay, reinstatement rights, benefit protections, etc.

General Questions

Below are our updated FAQs and answers to help employers navigate and understand their obligations under the FFCRA, which include the newest information provided by the DOL. As always, Buchanan Ingersoll & Rooney is available to assist you during this unprecedented and challenging time.

Generally

Q57: What is the current status of the Families First Coronavirus Response Act (FFCRA)?

A: President Trump signed into law H.R. 6201, the FFCRA, on March 18, 2020.

Q58: Who does the Act cover?

A: The FFCRA covers private employers with fewer than 500 employees in the United States, the District of Columbia, or any Territory or possession of the United States.

Q59: Does the FFCRA impact private employers with more than 500 employees?

A: The FFCRA has no effect on private employers with over 500 employees.

Q60. What workers do you count for purposes of the 500 cap?

A. You count all active employees, employees on leave, temporary employees who are jointly employed by you and another employer (such as a staffing company), and day laborers supplied by a temporary agency at the time that your employee’s leave is to be taken.

Q61: We have several commonly owned companies. Will each of them be considered a separate employer or will they be treated as one employer for purposes of the 500-employee threshold?

A: Generally, separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single employer.

The test for determining whether related companies will be considered a single employer or separate companies is the one used under the FMLA, which can be found at 29 CFR 825.104. Generally, separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single employer. That test considers the following factors: (i) common management; (ii) interrelation between operations; (iii) centralized control of labor relations; and (iv) degree of common ownership/financial control.

Note, however, that taking the position a group of companies is a single enterprise or single employer for purposes of the FFCRA may have implications under other laws that use a similar tests.

Q62: How does the FFCRA impact my leave policies?

A: The FFCRA creates new emergency paid sick leave and paid FMLA obligations. As a result, employers will need to amend their PTO and FMLA polices to reflect these new obligations.

Q63: When does the FFCRA apply to private employers?

A: The FFCRA took effect on April 1, 2020 and expired on December 31, 2020. However, under the C.A.A. 2021 (signed into law on December 27, 2020), employers will continue receiving tax credits until March 31, 2021 if they voluntarily choose to allow their employees to use any remaining FFCRA leave from January 1, 2021-March 2021.

Q64: Do I have to provide emergency paid sick leave or paid FMLA leave if my employees are not able to work because I have decided to close my business or made a business determination that employees should not be working?

A: If an employer makes a decision to close or cancel work shifts for business reasons (i.e. lack of work), neither emergency paid sick leave nor paid FMLA leave will apply as they are available only to employees who are not working due to specified reasons, not including their employer’s decision to cease or reduce operations.

Q65: Will I receive a tax credit for the emergency paid sick leave or paid FMLA and, if so, how do I secure it?

A: Yes. See the separate advisory we issued on this topic.

Q66: What information must I collect from an employee to substantiate the employee’s request for sick pay or emergency paid FMLA leave and secure a tax credit?

A: An employee must provide the following information prior to taking paid sick leave or emergency FMLA leave:

1. Employee’s name;
2. Date(s) for which leave is requested
3. Qualifying reason for the leave;¹
4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.
5. The name of the government entity that issued the quarantine or isolation order.
6. The name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.
7. The name of the son or daughter being cared for;
8. The name of the school, place of care, or child care provider that has closed or become unavailable; and
9. A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or expanded FMLA leave.

Emergency Paid Sick Leave Act

Q67: Under the Emergency Paid Sick Leave Act (which is part of the FFCRA) how much paid leave must employers provide?

A: Full-time employees are entitled to a maximum of 80 hours over a two-week period and part-time employees are entitled to a number of hours equal to the number of hours that the employee normally works over a two-week period; however, the benefits are capped at certain amounts per employee.

Emergency paid sick leave under this Act shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time for COVID-19 reasons (as outlined in the next question).

Q68: Who is eligible for paid sick leave under the Emergency Paid Sick Leave Act?

A: All employees of private employers with less than 500 employees, regardless of how long they’ve been employed, are eligible for emergency paid sick leave. Employees will be eligible if their employer has work for me, but they are unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to paragraphs (1) or (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Q69: What is teleworking?

A: An employee is able to telework if: (a) his or her employer has work for the employee; (b) the employer permits the employee to work from the employee’s location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.

Q70: Who is considered “a son or daughter?

A: A “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. “Son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Q71: Are any employers exempt from the Emergency Paid Sick Leave Act?

A: Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act.

Additionally, employers, including a religious or nonprofit organizations, with fewer than 50 employees (Small Businesses) are exempt from providing sick pay for reason No. 5 when doing so would jeopardize the viability of the small business as a going concern. A Small Business may claim this exemption if an authorized officer of the business has determined that::

1. The provision of sick pay for reason No. 5 would result in the Small Business’ expenses and financial obligations exceeding available business revenues and cause the Small Business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting sick pay for reason No. 5 would entail a substantial risk to the financial health or operational capabilities of the Small Business because of their specialized skills, knowledge of the business, or responsibilities; or
3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting sick pay, and these labor or services are needed for the Small Business to operate at a minimal capacity.

Q72: Can I require employees to use other paid leave before using the federal paid sick leave?

A: No. Emergency paid sick leave under this Act must be available immediately starting as of April 1, 2020.

Q73: If I’ve already provided paid sick leave to my employees for reasons identified in the Act prior to April 1, 2020, do I still have to provide two weeks of paid sick leave after April 1, 2020?

A: Yes. The Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

Q74: Can I require employees to find a replacement employee to cover their hours if they want to use emergency paid sick leave?

A: No.

Q75: At what rate of pay must I provide paid sick leave under the Emergency Paid Sick Leave Act?

A: If an employee is out for the reasons listed below, sick leave must be paid at the employee’s required compensation (as defined below), but is capped at $511/day and $5,110 in the aggregate per employee:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

If an employee is out for the reasons listed below, sick leave must be paid at 2/3 the employee’s required compensation, and is capped at $200/day and $2,000 in the aggregate per employee:

1. The employee is caring for an individual who is subject to paragraphs (1) or (2).
2. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
3. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

An employee’s required compensation shall not be less than the greater of: (1) the employee’s regular rate of pay, (2) the minimum wage rate in effect under Section 6(a)(1) of the FLSA, or (3) the minimum wage rate in effect for such employee in the applicable state or locality where the employee is employed.

Q76: How do I calculate emergency paid sick leave for part-time employees?

A: If the part-time employee has been employed for at least six months, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the average number of hours that the employee was scheduled to work each calendar day over the six-month period ending on the date on which the employee takes paid sick leave, including any hours for which the employee took leave of any type.

If the part-time employee has been employed for fewer than six months, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the number of hours the employee and the employer agreed to at the time of hiring that the Employee would work, on average, each calendar day.

If there is no such agreement, the employee is entitled to up to the number of hours of paid sick leave equal to 14 times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type of leave.

Q77: How much notice do my employees have to give me to take emergency paid sick leave?

A: After the first workday (or portion thereof) an employee receives paid sick leave under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick leave.

Q78: Do I need to inform employees of their right to take paid sick leave under the Emergency Paid Sick Leave Act?

A: Yes, employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.

Q79: What if I already provide paid sick leave?

A: The Act’s paid leave benefits are in addition to whatever paid sick leave an employer already provides under any state or local law, collective bargaining agreement, or policy.

Q80: If the employee’s employment is terminated, do I have to pay them for any unused paid sick leave?

A: No. The Act does not require financial or other reimbursement to an employee upon the employee’s termination, resignation, retirement, or other separation from employment for unused paid sick leave.

Q81: Am I required to permit employees to carry over paid sick time if it is not used in 2020?

A: No.

Q82: What are the penalties for failure to comply with the Emergency Paid Sick Leave Act?

A: Employers who violate this Act shall be considered to have failed to pay minimum wages in violation of the FLSA and be subject to penalties related to such a violation. Willful violations will result in greater penalties; however, the DOL will not bring enforcement actions against private employers for violations of the Act through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

Q83: How does this Act impact me if I am under a multi-employer bargaining agreement?

A: An employer signatory to a multi-employer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under this Act by making contributions to a multi-employer fund, plan, or program based on the hours of paid sick leave each of its employees is entitled to under the Act while working under the multi-employer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program for their emergency paid sick leave.

Q84. Will I receive a tax credit for the paid sick leave I provide?

A. Yes. See the advisory we issued on this topic here.

Emergency Family and Medical Leave Expansion Act

Q85: Who is eligible for expanded FMLA leave under the Emergency Family and Medical Leave Act?

A: All employees (full- or part-time) who have been employed for 30 calendar days who have a “qualifying need related to a public health emergency.” The requirement that the employee must be employed for a year and work 1,250 hours in a location where there are 50 or more employees within a 75-mile radius does not apply to this benefit.

The Act defines “qualifying need related to a public health emergency” as “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” (Hereinafter, COVID-19 Qualifying FMLA Leave.)

Q86: Who is considered a "son or daughter"?

A: A “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. “Son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

Q87: How does the Act define a “public health emergency”?

A: The Act defines a “public health emergency” as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”

Q88: How does the Act define a “child care provider”?

A: The Act defines a “child care provider” as: “a provider who receives compensation for providing child care services on a regular basis, including an ‘eligible child care provider’ (as defined in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n)).”

Q89: How does the Act define a “school”?

A: The Act defines a “school” as “an ‘elementary school’ or ‘secondary school’ as such terms are defined in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).”

Q90: If I employ health care providers or emergency responders, will COVID-19 Qualifying FMLA Leave apply to my business?

A: Employers of health care providers or emergency responders may elect to exclude their employees from this Act. Additionally, the Act gives the Secretary of Labor the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee under the Act.

Q91: How many weeks of COVID-19 Qualifying FMLA Leave do I need to provide and does it need to be paid?

A: Employees are eligible for up to a total of 12 weeks of COVID-19 Qualifying FMLA Leave. The first two weeks are unpaid; however, as a practical matter, an employee may use Sick Pay or accrued but unused time off under an employer policy to be paid for the first two weeks. The remaining 10 weeks of COVID-19 Qualifying FMLA Leave must be paid at 2/3 the employee’s regular rate for the number of hours that the employee would otherwise be normally scheduled to work, with the paid leave capped at $200 per day and $10,000 in the aggregate per employee.

Additionally, if you already provide regular FMLA leave to your workers, then an employee cannot take more than a total of 12 weeks of any FMLA leave (including COVID-19 Qualifying FMLA Leave) during the 12-month period the employer uses for calculating annual FMLA leave entitlements, i.e., an employee’s available COVID-19 Qualifying FMLA Leave will be reduced by other FMLA leave taken during the applicable 12-month period.

Q92: If employees are on FMLA leave for non-COVID-19 reasons, do I now have to pay them?

A: No. The 2/3 payment requirement only applies to COVID-19 Qualifying FMLA Leave.

Q93: How much notice do my employees have to give me before taking COVID-19 Qualifying FMLA Leave?

A: Where the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.

Q94: Do I need to inform employees of their right to take COVID-19 Qualifying FMLA Leave

A: Yes, employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.

Q95: Are any employers exempt from providing COVID-19 Qualifying FMLA Leave?

A: Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act.

Additionally, employers, including a religious or nonprofit organization, with fewer than 50 employees (Small Business) is exempt from providing COVID-19 Qualifying FMLA Leave when doing so would jeopardize the viability of the small business as a going concern. A Small Business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of COVID-19 Qualifying FMLA Leave would result in the Small Business’ expenses and financial obligations exceeding available business revenues and cause the Small Business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting COVID-19 Qualifying FMLA Leave would entail a substantial risk to the financial health or operational capabilities of the Small Business because of their specialized skills, knowledge of the business, or responsibilities; or
3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting COVID-19 Qualifying FMLA Leave, and these labor or services are needed for the Small Business to operate at a minimal capacity.

Q96: Is the COVID-19 Qualifying FMLA Leave job protected?

A: Yes. However, employers with less than 25 employees may be exempted from protecting the job if the position held by the employee when the leave commenced does not exist anymore due to the economic conditions or other changes in operating conditions of the employer.

The employer must engage in reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

If the employer’s reasonable efforts fail, the employer must contact the employee if an equivalent position becomes available in the one-year period following the date of the public health emergency’s conclusion or 12 weeks after the date when the employee’s COVID-19 FMLA leave commences, whichever is earlier.

Q97: How does this Act impact me if I am under a multi-employer bargaining agreement?

A: An employer signatory to a multi-employer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under these amendments by making contributions to a multi-employer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multi-employer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multi-employer collective bargaining agreement for COVID-19 Qualifying FMLA Leave.

Impact on Unemployment: Emergency Unemployment Insurance Stabilization and Access Act of 2020

Q98: What impact does the FFCRA have on unemployment insurance?

A: The FFCRA provides $1 billion in emergency unemployment insurance relief to the states, allocating half for costs associated with increased administration of each state’s unemployment insurance program and the other half to be held in reserve to assist states with a 10 percent increase in unemployment. To receive a portion of this grant money, states must temporarily relax certain unemployment insurance eligibility requirements, such as waiting periods and work search requirements.

Q99: Do I have any new unemployment-related obligations under the Act?

A: No. But, for states to get funding, they must take the following steps, so employers should watch for state-mandates on the following:

1. Requirement for employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment. Such notification may be based on model notification language issued by the Secretary of Labor.
2. State must ensure that applications for unemployment compensation, and assistance with the application process, are accessible in at least two of the following: in-person, by phone, or online.
3. State must notify applicants when an application is received and is being processed, and in any case in which an application is unable to be processed, provides information about steps the applicant can take to ensure the successful processing of the application.

Q100: What about health care providers and emergency responders?

A: An Employer whose employee(s) is a health care provider or an emergency responder may exclude such employees from the EPSLA’s Paid Sick Leave requirements and/or the EFMLEA’s Expanded Family and Medical Leave requirements. The DOL regulations construe the list of healthcare providers and emergency responders extremely broadly, and includes not only physicians and nurses, but also all doctor’s office employees, laboratory workers, and those manufacturing medical products. Simultaneously, however, the FAQs encouraged employers to be “judicious” in using the exception at the risk of spreading the virus.

Q101: What will trigger entitlement to benefits?

A: This is an important area where the two acts diverge. The shorter sick leave coverage under the EPSLA applies to a wider range of COVID-19 related absences. The longer durational benefits under the EFMLA apply in a narrower range of instances and may pay lesser benefits. For ease of reference, we’ll treat them separately.

Q102: What triggers entitlement to paid sick leave?

A: As to sick leave under the EPSLA, employers with fewer than 500 employees must provide paid sick leave to employees who are unable to work, or telework, because they:

Are subject to a federal, state or local quarantine or isolation order.

Have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

Are experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Are caring for an individual who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine as described above.

Are caring for his or her child whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 precautions.

Are experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

All of these are related to the COVID-19 virus. Among the provisions causing concern for employers, however, are those relating to payments for employees who take time to care for a child whose school or place of care has closed. These concerns stem primarily from students who are old enough, such as 17, not to need parental supervision at home, but the requirement to provide leave exists in the statute nonetheless.

As will be noted below, absences for the first three reasons above (such as being under a quarantine order) are treated somewhat differently from the second three (such as staying at home to care for a child whose school or daycare provider has closed).

Note: the shorter list of reasons triggering entitlement to the longer EFMLEA benefits are discussed further below.

Q103: When determining how many hours of paid sick leave to pay to an employee under the EPSLA, should I count overtime?

A: Yes. But, there are two very important caveats.

First, an employee is entitled to a total of 80 hours of paid sick leave under the EPSLA. So, let’s say that an employee takes EPSLA sick leave for a week in which she would have worked 10 hours of overtime, for a total of 50 hours. She is owed 50 hours of paid sick leave for that week, with a remaining balance of 30 hours. If the employee takes EPSLA leave for the next week, she will be capped at 30 hours of paid sick time regardless of how many hours she would have worked.

Second, the employee is not owed the normal time and one-half overtime premium on paid sick leave under the EPSLA. So, in the above example, the employee would be owed 50 hours of paid sick leave, all of which would be paid at straight time.

Q104: Can an employee take paid sick leave under EPSLA for more than one reason?

A: Yes, but the overall 80-hour cap applies regardless of how many qualifying reasons the employee experiences. So, if an employee takes 48 hours of EPSLA paid sick leave because his doctor advised him to self-quarantine after exposure to COVID-19, he will have 32 remaining hours of paid sick leave to use under the EPSLA. As a result, if he subsequently needs additional sick leave because his childcare provider closes due to COVID-19, he will be capped at 32 hours.

But, remember—an employee in this circumstance (i.e., in need of childcare) may still be entitled to 10 weeks of partially paid leave under the EFMLEA after exhausting EPSLA leave.

Q105: What are the sick leave benefits under the EPSLA?

A: As to the EPSLA, full-time employees are eligible for 80 hours of leave. Part-time employees are eligible for the number of hours they work, on average, over a two-week period. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.

The rate of pay depends in large part on the reason for the leave. For the first three reasons stated above (such as being under a quarantine order), the employee is entitled to their regular rate of pay, subject to certain caps.

For the remaining reasons (such as caring for a child due to a school closure), the pay is at two-thirds of the employee’s regular rate of pay.

These amounts, however, are subject to fairly generous caps on the amounts paid to employees. Specifically, leave taken for the first three reasons above, such as the employee’s own COVID-19 related condition, is capped at $511 per day. Leave for the remaining reasons, such as leave taken to care for an individual or child, is capped at $200 per day.

Q106: How do I figure out the regular rate of pay under the FFCRA?

A: Keep in mind that both the EPSLA and EMFLEA entitle the employee to a measure of sick or leave pay based upon the employee’s regular rate of pay. The regular rate of pay is based on the employee’s average rate of pay over the six months prior to the leave. If the employee has been employed for less than 6 months, you can use the average over the time that the individual has been employed.

Generally, this is a straightforward calculation. You divide the employee’s total compensation over the past 6 months (or the period of employment, for newer employees) by the total number of hours worked.

Where the employee has earned non-discretionary bonuses, commissions, tips or piece rates, these amounts typically must be included in the calculation. The rules in these circumstances vary, however, and will depend on the particular facts involved.

Q107: If my employee already meets one of the six conditions above, and I provide paid sick leave to the employee before the EPSLA goes into effect April 1, will the paid sick leave I am already providing count toward the 80 hours of EPSLA sick time?

A: No. The DOL’s FAQs indicate that employers are required to provide 80 of paid sick leave to qualifying employees starting April 1, even if the employer – acting out of kindness – has provided the employee with paid sick time beginning before April 1. The 80-hour clock starts April 1, and employers will get no credit for sick leave provided before that date.

If an employee has an EPSLA-qualifying condition and is out of work before April 1, employers may require the use of ordinary PTO consistent with the employer’s regular policy; or the employer may allow the employee to take unpaid leave; or the employer may allow additional sick days to be taken. But none of that time will be credited toward the 80 hours of paid sick time required under the EPSLA.

Q108: What circumstances trigger coverage under the EFMLEA for longer benefits?

A: As to the longer coverage under the EFMLEA, the circumstances are narrower (and, as will be explained, the level of pay may be less). Coverage under the EFMLEA exists only when the employee is unable to work (or telework) because the employee’s child’s school or care center is closed, or the child’s care provider is unavailable due to COVID-19. It isn’t available for the remaining five reasons, such as the employee’s own illness from the coronavirus. Thus, it applies in a much narrower range of instances – only those related to the closing of schools or day care centers.

Q109: What are the EFMLEA (expanded FMLA) benefits?

A: As noted above, these last somewhat longer than the 80 hours of sick pay, but they apply in fewer instances and at a potentially lower rate of pay.

The EFMLEA first provides a measure of job protection, much like that already contained in the FMLA that, like the FMLA, lasts for a total of 12 weeks.

Leave under the EFMLEA is unpaid for the first 10 workdays. Please note, however, that pay might be available during those 10 workdays under the sick leave provisions of the EPSLA. After the first 10 workdays, leave is paid at two-thirds of the employee’s usual pay, with a cap of $200 per day. For employees with schedules that vary from week to week, a six-month average is to be used to calculate the number of hours to be paid. If this calculation cannot be made because the employee has not been employed for at least six months, you should use the number of hours that the parties agreed that the employee would work upon hiring.

An employee, if they satisfy both the EPSLA and EFMLEA, will be entitled to benefits under both statutes and thus receive some measure of paid benefits both for the first 10 workdays (under the EPSLA) and then the remaining ten weeks under the EFMLE with a cap of $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.

The DOL guidance appears to permit employers and employees to agree that accrued paid leave may be used to supplement the 1/3 portion of expanded family and medical leave that is unpaid.

Q110: Do employees have a right to return to their positions after taking expanded leave?

A: Generally, yes. Employers are prohibited from firing, disciplining, or refusing to reinstate employees because they took expanded sick leave or family and medical leave. However, employees returning from such leave are not protected from employer actions (such as layoffs or furloughs) that are unrelated to the employee(s) taking leave.

Q111: How do we afford this?

A: Congress was well aware of this issue, and it is part of the reason the bill was written the way it was. Subject to certain caps and restrictions, covered employers are eligible to receive refundable tax credits for paid sick and protected leave based on the type of leave and whether the leave is for the employee or the employee’s family member. Although the DOL notes that it does not administer this portion of the act, it has described it as “dollar for dollar” reimbursement for covered employers through tax credits. The IRS guidance on how the credits will work can be found here.

As explained by the IRS, the tax credits for the paid sick leave benefits and expanded family and medical leave benefits will be provided for “each calendar quarter in an amount equal to 100 percent of the ‘qualified sick leave wages’ and ‘qualified family leave wages’ required to be paid” under the FFCRA. With the April 1, 2020 effective date, the IRS has further noted that “the refundable tax credits for employers apply to qualified sick leave wages and qualified family leave wages paid for the period from April 1, 2020 to December 31, 2020.” Put another way, the IRS guidance seems to comport with that given by the DOL, which is that dollar for dollar tax credits will apply to the amount of paid leave properly provided under the statute.

Accordingly, to qualify for such credits, employers must maintain the following records for four years:

Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to eligible employees, including records of work, Telework and Paid Sick Leave and Expanded Family and Medical Leave;

Documentation to show how the employer determined the amount of qualified health plan expenses allocated to wages;

Copies of any completed IRS Forms 7200 submitted to the IRS;

Copies of the completed IRS Forms 941 submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and

Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

This is a continually evolving area, with Congress considering and debating additional legislation to deal with the COVID-19 pandemic. Please also see programs that might ease the cost under the heading “What tax or other benefits are available to offset the cost?”, below.

Q112: This is really hard. How do we approach these issues?

A: It is hard. Part of this difficulty arises from the fact that the two sets of benefits are so different that they must be analyzed separately. In general, one way is to approach it like this:

Is the employer covered? If private, does it have fewer than 500 employees? If so;

Is the employee covered? This will likely be true of all employees for 80 hours of sick leave under the EPSLA and those of 30 days’ tenure under the EFMLEA.

For the first 10 workdays, what has triggered the absence? If it is one of the six items above, the employee will be entitled to sick leave benefits under the EPSLA. To determine the amount, look at the reason why they are seeking benefits (i.e. is the reason among the first three listed above, or the second three?).

Afterwards (i.e. weeks three through twelve), the question is much more limited, whether they are absent to care for a child home because of the closure of a school or loss of day care due to the virus.

It’s probably easiest to start with the EPSLA sick leave benefits and then, if necessary, look to those under the EFMLEA.

Q113: This is still really hard. Can you give me a simple example?

A: Sure.

Let’s say employer has between 50 and 500 employees (and therefore is covered by both statutes. An employee has two grade-school aged children and the school has closed (as it has in many states). The employee has worked for over 30 days and is a full-time employee. They will stay home to watch their children as there is no available daycare. What do they get?

For the first 10 work days, an employee can use existing vacation, personal, medical or sick leave provided under an employer’s policy OR use the 80 hours of sick pay under the EPSLA The pay under the EPSLA is at 2/3 the employee’s regular rate, capped at $200 per day and $2,000 in the aggregate.

For the remaining 10 weeks after that they are on 2/3 pay under the EFMLEA, subject to caps of $200 per day and $10,000 in the aggregate.

In three months, the employer will be entitled to tax credits for the amounts paid.

Q114: Is the analysis different if the employee is sick themselves?

A: It sure is. Let's assume now that the employee himself or herself is actually diagnosed with the coronavirus.

The employee gets the same benefits as described above, except that they receive all of their regular rate (not just two-thirds) subject to higher caps of $511 per day or $5111 per employee in the aggregate for the first 80 hours. The same would be true if the employee was asked by a health care provider to self-quarantine, or if they were having COVID-19 symptoms and are seeking a diagnosis.

They would not, however, have sick pay under the EFMLEA beyond the first 80 hours as the EFMLEA does not apply to the employee’s own illness. Thus, they would have higher benefits for the first 80 hours, but none afterwards.

Q115: Can employees get both EPSLA and EFMLEA benefits?

A: Yes. As noted above, an employee absent from work to care for a child as a result of a virus-related school or day care closing could get 10 days of EPSLA sick leave benefits during the first 10 work days and then 10 weeks of lesser EFMLEA benefits for the following ten weeks, until coverage is exhausted.

Some have noted confusion over the first two weeks of leave because of the interaction of the two statutes. The DOL explains that Congress intended the two to work together—to permit an employee to have a continuous income stream while taking FFCRA paid leave to care for his or her child whose school or place of care is closed, or whose child care provider is unavailable, for a COVID-19 related reason. Admittedly, it still can be confusing, but it’s easier if you consider the goal of giving employees a reliable income stream during these uncertain times.

Q116: We require employees to use sick/accrued PTO etc. for FMLA absences. Can we do so here?

A: We would urge caution here. Part of the answer is clear and part is currently somewhat more clouded.

Two issues are clear. First, the employer cannot require employees to use accrued sick/ PTO time for paid sick leave under EPSLA. Second, the employer cannot require employees to use accrued sick/ PTO time for the first two weeks of leave under the EFMLEA.

The question is more complicated for the remainder of the EFMLEA leave period (i.e., after the first two weeks). The statute itself permits the employee to elect to substitute any accrued paid leave for expanded family and medical leave, but neither permits nor prohibits an employer from requiring such substitution. The DOL’s original regulations contained conflicting provisions on this point, but were revised on April 10 with little explanation of the DOL’s motives in making the relevant change.

In any event, following the April 10 revisions and additional FAQs, the DOL’s view now appears to be that the employer can require concurrent use of accrued PTO/vacation time after the first two weeks of EFMLEA leave. But, if the employer does so, it must pay the employee at least the full amount to which he or she is entitled under the employer’s paid leave policy.

The DOL’s view, however, may not be the final word on the matter. Although courts typically defer to an agency’s interpretation of a statute that is within the agency’s jurisdiction, they will reject agency guidance if the agency is found to have acted contrary to the statute’s requirements. Thus, whether the DOL’s position on substitution of paid leave under the EFMLEA stands will ultimately depend on how courts interpret the Act in the future.

Accordingly, for the present time, the safest answer may be to permit employees to use accrued time under the employer’s policies for expanded medical leave, but not to require them to do so. The employer and employee can also agree to let the employee use accrued paid leave time to supplement their EFMLEA leave to pay the 1/3 portion of their compensation that the expanded family and medical leave does not. Stay tuned.

Q117: Can the employee voluntarily use their employer-provided leave benefits (such as PTO/vacation/sick time) if they want?

A: This is largely a question of state law and the language of the employer’s own policies. In general terms, however, an employee can take advantage of their accrued sick, vacation, or PTO benefits in accordance with the terms of the employer’s policies. This means that, in the examples cited above, those benefits would generally be in addition to their leave rights under the EPSLA and EFMLEA. It appears that the employee could also choose to use their accrued sick/vacation/PTO policies first (if such leave is available) before using their paid sick leave under EPSLA. The total combined paid leave under EPSLA and EFMLEA would not exceed 12 weeks, but the employee may be able to take longer leave by using the accrued benefits under the employer’s sick/vacation/PTO policies if available.

The DOL considers the employer’s own PTO/sick pay/vacation benefits as a potential source of funds, but also takes care to avoid potential double-dipping for the same hours.

Typically, the employee must decide which type of leave they want to take (to the extent the different types are available). The statute gives some flexibility – for example the employee could decide during the first ten days/80 hours to use accrued sick pay rather than paid sick leave benefits under the EPSLA – but rights under different programs cannot be claimed for the same hours.

One exception is that an employer may allow employees to supplement hours where FFCRA benefits aren’t available. The most common example would be where an employee is receiving 2/3 pay and the employer can, if it wants, permit the employee to tap accrued paid leave time to make up for the other 1/3.

This is one area to proceed with a little care. Nothing prevents the employer from going above the FFCRA leave requirements, but it will only receive tax credit for the leave the FFCRA actually required, not the use of its own accrued leave time policies.

Q118: What about part-timers?

A: They are covered, but receive lesser benefits based on the number of hours they have worked. Please see the questions about the amount of benefits above.

Q119: If an employee cannot work on site for a COVID-19 qualifying reason, can we require that they telework?

A: Yes, but only if the employee is actually able to telework. Otherwise, they are entitled to FFCRA benefits. One approach to these issues is to adopt an interactive approach to determine, if the employee is reluctant to telework, the reasons and how they may be addressed. The possibility of flexible scheduling and intermittent use of leave, by agreement of the parties, and permitted by the regulations, may provide a tool to enable the employee to telework. The use of intermittent leave in teleworking is discussed below.

Q120: What if the employee wants to work a different schedule because they need to care for a child home from school?

A: If a COVID-19 qualifying reason prevents an employee from working a specific schedule, then he or she is entitled to the paid leave. One solution would be, if possible, to agree with the employee that he or she can work a modified schedule that allows for COVID-19 childcare during the day. In other words, if the employee is able to work early in the morning and late at night while taking care of a child or children during the day, then as the DOL explains the employee is “able to work and leave is not necessary.” Moreover, as the DOL further notes, to the extent an employee is able to telework while caring for a child, “paid sick leave and expanded family and medical leave is not available.”

Practically speaking, whether a given employee can telework may be fact specific, including the nature of the work as well as the employee’s COVID-related circumstances. For this reason, the Department of Labor recommends that the employer engage in a collaborative interactive process with the employee to determine if and to what extent a telework situation is feasible.

To accommodate the flexible nature of teleworking, the DOL regulations define “telework” to allow for creative arrangements. The regulations permit teleworking to be performed either during normal business hours or during other times that the employer and employee agree upon. They even permit schedules that would largely have been unthought of by most employees or workers even weeks ago. For example, the DOL supplemental commentary notes that and an employer and employee could agree on the following telework schedule: “7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays” to permit the employee to juggle family commitments with work. Of course, the employer must compensate the employee for all hours actually worked, but not for significant gaps in work during the day. The precise contours of such arrange would be subject to the agreement between the employer and the teleworking employee.

Q121: Can the employee take leave intermittently?

A: This is a common question and the answer depends largely on why the employee needs the leave, which benefit they are seeking (sick leave or expanded FML leave), whether they are permitted to telework, and what the parties are willing to agree to. We’ll break it down for ease of use.

General rule: With some commonsense limits, the temporary regulations permit, but do not require, the employer and employee to agree upon an intermittent leave schedule while teleworking. These rules apply to a lesser extent when the employee must come into the worksite. In a departure from its usual stance in the past, the DOL encourages flexibility in these arrangements, especially in teleworking situations.

Teleworking employees. If the employer permits the employee to telework or the employee normally works from home it can permit intermittent leave, but it is not required to permit sick leave to be taken on an intermittent basis. The employer and employee can also agree to a modified work schedule, such as permitting the employee not to work for two hours mid-afternoon, with intermittent leave taken to cover that period. The temporary regulations permit, and even encourage, the use of creative schedules at home, such as the employee working in 2-hour blocks throughout the day or on weekends. The same rules appear to apply to both sick leave under the EPSLA and expanded leave under the EFMLA.

Employees who must come into the worksite. These rules look a more complicated, but the additional requirements are there for logical reasons.

First, for common sense reasons, employees absent for reasons other than to care for a child who is home due to the closing of a school or daycare cannot take intermittent leave. They should not come into the workplace at all due to the risk of transmitting the virus. Instead, they should be using paid sick leave and not coming into work.

As to absences to take care of a child due to the closing of a school or unavailability of day care, intermittent leave can be taken in any increment of time the parties may agree upon. One example would be to permit, if the parties want, the employee to work a different or shorter schedule, such as 10:00 to 2:00 instead of 9:00-5:00. Please note that as a practical matter these arrangements will be less creative than teleworking arrangements in that the employee will need to travel to home and work between working periods.

Documentation. The DOL only requires a “clear and mutual understanding of the parties” as to what intermittent schedule they might agree upon. It does not need to be in writing, but employers should consider doing so, even briefly, to avoid misunderstandings.

Q122: If an employee is unable to work or telework because a child’s school is closed, does that mean the employee is automatically eligible for both kinds of leave?

A: Not necessarily. Leave under the EFMLEA is only available to employees who have been employed for 30 days before the start of the need for leave. Emergency paid sick leave under the EPSLA is available to employees regardless of the amount of time they have been employed.

Q123: Hold on. What if a private employer has over 500 employees?

A: The new acts (EPSLA and EFMLEA) do not apply. The employees get whatever they would have received under the employer's pre-existing leave policies. As no benefits are being paid, there are also no tax credits.

The same would not be true for many public employers. All public agencies that are subject to the Fair Labor Standards Act are covered employers under both the EPSLA and EFMLEA, regardless of their number of employees.

Please note that Congress continues to work on COVID-19 legislation. Some in Congress have proposed removing the cap for employers with over 500 employees, potentially without the offsetting tax credits. Larger employers should continue to monitor legislative developments to ensure that they aren’t covered by subsequent enactments.

Q124: What if the employer has fewer than 50 employees?

A: The FFCRA permitted the DOL to create an exception for employers with fewer than fifty employees if the imposition of the leave requirements “would jeopardize the viability of the business as a going concern.” To meet the exception, the employer must show one of three things:

The provision of sick pay or expanded family and medical leave would result in the business’s expenses and financial obligations to exceed its revenues, and cause it to cease operating, even at a minimal level; OR

In the case of an employee, that the absence of that employee, because of his or her specialized skills, knowledge, and responsibilities, would entail substantial risk to the company’s financial health or operational capabilities; OR

There are not sufficient workers who are able, willing, and qualified to do the work to keep the business operating at even a minimal capacity.

An “authorized officer of the business” should make the determination and document the reasons based on the factors identified above. That document should be kept in the employer’s records, but need not be submitted to the DOL.

Employers, particularly smaller employers, will not want employees coming into work if they have been advised not due by their health care provider for COVID-19 reasons. Thus, this issue is of concern for paid sick leave only where the employee is caring for a child whose school or daycare has been closed, or a childcare provider is unavailable, because of COVID-19 precautions. For all other reasons for leave under the EPSLA, employers with fewer than 50 employees are not exempt, even if the status of the business as a going concern is in jeopardy.

Q125: Which individuals should be counted (or not counted) in determining whether the employer has more than 500 employees?

A: The DOL regulations specify that the 500-employee threshold includes all full-time and part-time employees employed as of the date that the leave will begin, regardless of how long they have been employed. The 500-employee threshold includes any employees on leave of any kind.

Aside from its own employees, an employer also may count any individuals for whom it is a joint employer. In some circumstances, this may include employees and/or day laborers provided by a temporary placement agency, depending on the level of control that the employer exercises and the length of the assignment.

An employer may also count individuals employed by related entities (i.e., separate corporate parents, subsidiaries and affiliates), if the employer and the related entities constitute a single, “integrated employer.” Common corporate ownership is but one factor in the integrated employer analysis, and not even the most important one. Rather, this determination involves a detailed, fact-based analysis involving multiple factors that include centralized control over labor and employment relations. This is a complex analysis that is highly fact-specific and will need to be considered carefully on a case-by-case basis. As noted below, there could be significant risks for the employer in conceding single employer status. If it combines operations for purposes of avoiding FFCRA coverage through the end of 2020, it may find itself bound to obligations under a host of other statutes, including in particular the FLSA, FMLA, and NLRA.

In terms of who should not be counted, employers should only count employees in the United States or its territories or possessions. Employees overseas should not be counted. Independent contractors also must be excluded in determining whether the employer employs more than 500 employees.

Q126: Given the above, aren't I better off being a large (500+) employer? Should I concede that related operations are a single employer to take advantage of that?

A: Probably not, but you will need to consider the matter carefully. The 500-employee threshold was created to be in tandem with what the DOL has described as “dollar for dollar” tax credits, the idea being that employers will be compensated for the FFCRA benefits they pay. Moreover, some in Congress have suggested that they intend to turn to large employers (i.e., those with more than 500 employees) with the next round of COVID-19 legislation, and there is no guarantee that tax credits will be made available in future measures. So, conceding status as a single enterprise to fall within the FFCRA exemption may ultimately result in an employer becoming subject to future legislation under which no offset is available for any increased benefits that are required.

Conceding single enterprise status for FFCRA purposes furthermore could have ramifications that ripple across a host of federal and state laws ranging from the FMLA and FLSA through NLRA union issues and ERISA benefit rights, obligations and liabilities, as well as state workers compensation and unemployment compensation rules. It may also affect other non-employment laws. Thus, the benefit of claiming to be a single enterprise to reach the 500-employee threshold in many cases will be outweighed by the risk of being found to be a single enterprise in other contexts.

An employer considering taking the position that it and its related entities are a single enterprise to meet the 500-employee threshold should therefore conduct a very detailed assessment of its operations and consult with counsel regarding the factors above, as well as others, and the inherent risk.

Q127: Will these acts apply to other illnesses or FMLA absences?

A: No. The expansion is limited to COVID-19 related absences. The ten-day sick leave provisions of the EPSLA apply to the seven types of absences caused by the coronavirus. The longer EFMLEA provisions apply only to school/day care closings occasioned by the virus. Illnesses for other reasons are governed by the employer’s sick leave policies, the FMLA, and state law. Both EPSLA and EFMLEA expire on December 31, 2020.

Q128: So, how do these leave provisions coordinate with FMLA leave? Is it 12 weeks, 24 weeks, or something else?

A: Paid sick leave under the EPSLA is in addition to the 12 weeks of leave required under the FMLA.

Extended family medical leave under EFMLEA is more complicated. In general, it is treated as FMLA leave for purposes of counting the entitlement to 12 total weeks of FMLA/EFMLEA leave. Accordingly, an employee is entitled to a total of 12 weeks of FMLA leave during the annual period chosen by the employer (such as a calendar year or a rolling year), regardless of the reason(s). So, if an employee has used 10 weeks of FMLA leave thus far in the respective calendar/rolling year, that employee will have only two weeks of available EFMLEA leave to use during that year, assuming he/she is qualified for such leave.

The details will not always be so simple. First, of course, coverage under the EFMLEA is broader than that under the FMLA. It applies (absent an exemption) to employers with fewer than 50 employees. And the EFMLEA applies to employees after only 30 days, as opposed to the FMLA’s one year. Many employees, particularly newer hires and those working for smaller employers, will be covered by the EFMLEA and not the FMLA.

Second, the FMLA focuses, among other things, on an employee or family members with a “serious health condition.” That term goes far beyond COVID-19, but would not include leave to take care of a child whose school has closed due to COVID-19 concerns. Leave under the EFMLEA is available for different reasons, and those reasons are related to the COVID-19 virus.

But assuming that the employee is eligible for both FMLA and EFMLEA time, the employee is entitled to 12 weeks (10 of them with some pay) between April 1 and December 31, 2020, but that time is also credited against their FMLA entitlement in whichever 12-month period the employer has chosen for FMLA purposes. Put another way, EFMLEA time counts against the employee’s FMLA “bank” and traditional FMLA time may cut into the employee’s EFMLEA entitlement.

Q129: We may have to lay employees off in the future. Will we have to offer paid leave under the FFCRA to the employees who are laid off? What if the layoff is due to the consequences of the virus?

A: No, an employer is not required to offer FFCRA leave to employees who are laid off. The temporary regulations issued by the DOL specifically note that an employee is not entitled to take paid leave under the EPSLA or the EFMLEA “where the Employer does not have work for the [employee].” In other words, an employee is entitled to FFCRA leave if and only if he/she would be performing work for the employer but for the qualifying reason. So, even if an employee’s childcare provider is closed or the employee is subject to a quarantine/isolation order, the employee still is not entitled to FFCRA leave if his/her employer would not have work to perform even if the employee was available.

Q130: We’ve had to let employees go for lack of work due to the virus. Do we have to go back and offer them sick or family leave under the FFCRA?

A: No. Both acts provide benefits for absences based on specific, qualifying reasons (i.e., medical conditions or school/day care provisions caused by the coronavirus). The DOL has confirmed that a lack of work is not a qualifying reason, even where the lack of work is generally attributable to the COVID-19 pandemic.

Q131: Do these new provisions have a “shelter in place” provision?

A: This is a very good and common question, and the answer for most employees at present will likely be “no,” but the answer is far from clear. Perhaps because the language of the many shelter-in-place or stay-at-home orders varies not only by state, but by city as well, the regulation on this point is more general and less helpful than it might be. It states:

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

While this regulation is not especially well-written, it does provide a measure of clarity on several issues. First, of course, the issue is only of importance for the 80 hours of paid leave under the EPSLA, not the longer period under the EFMLEA (because it doesn’t have a quarantine provision – benefits are not payable in quarantine/isolation order circumstances). Second, it does seem to recognize the existence of such orders, but also notes both that, for this situation to apply, the employee must be unable to work because of the order and the employer must otherwise have work for the employee. Among other things, this underscores that benefits are not payable if the employer does not have work for the employee to do.

Of particular concern are the state travel orders that impose mandatory 14-day quarantines on individuals arriving from another state. Several states have implemented these types of orders, including Texas, Montana, Alaska, and Hawaii, and more continue to be released, seemingly every day. If an employee engages in personal travel outside the state and then returns home, having traveled with knowledge that one of these orders is in place, it would seem unfair for the employee to then be eligible for 80 hours of Paid Sick Leave – in effect allowing the employee to turn a weekend drive into 10 days of stay-at-home pay. More clarity on this issue from the DOL would be welcome.

The discussion accompanying the temporary regulations sheds some light. It provides the example of a coffee shop that is not designated an “essential business.” A lay-off due to a loss of business caused by the virus or a “stay-at-home” order is not considered a “quarantine” order under the statute and does not trigger a right to FFCRA benefits. That is also true if the order closes the business (e.g. an order that all restaurants close, apart from take-out) rather than being directed towards individual or specific groups of people. FAQs released by the DOL on April 2 and on April 20 seem to underscore the distinction between orders directed at a business versus those directed at particular individuals.

The most recent FAQs provide some examples. If an employee is laid off or furloughed for lack of work, even if that loss of work is due to the virus, no paid leave is available. Similarly, if the employer closes a location due to the application of an isolation or quarantine order, no leave is available. The employee may be entitled to paid leave by contrast if, for example, they are ordered to stay home by a government official for 14 days because they were on a cruise ship where other passengers tested positive for the virus. Another example where the employee would be entitled to leave is where a government order designates a containment zone and the employee is unable to work because they are within that zone. Again, the distinction lies between orders affecting the employer versus those affecting the employee themselves.

Again, however, it is not a well-written or clear regulation in many respects. Unfortunately, it may require a review of which “stay-at-home” or “shelter-in-place” orders apply, how they might apply to the employee or business, and what work the employer might otherwise have for the employee to do.

Q132: What if the employee just believes they might have the coronavirus?

A: Many employees are justifiably concerned about either contracting or spreading the virus, but the statute requires more than just a suspicion, even a reasonable one, that the employee has become ill with COVID-19 symptoms. Employers should certainly encourage and require employees who think they have the virus to stay home, but to obtain paid sick leave benefits under the FFCRA, the employee must be under a quarantine or isolation order, have been advised by a health care provider to self-quarantine, or, if they have symptoms, actively seek a diagnosis from a health care provider.

These are largely commonsense rules. Keep in mind that if the employee has COVID-19 symptoms he or she may also have benefits available under the employer’s own paid leave policies. Where feasible, the DOL suggests consideration of teleworking as an alternative.

Q133: Are there limits on paid sick leave to care for another person?

A: This is an area where some employers have been concerned about potential abuse. That abuse may exist in some cases, but at the same time it is an important area for both employers and employees.

First, of course, this only applies to the 80 hours of paid sick leave under the EPSLA. There is no corresponding provision for extended family and medical leave under the EFMLEA (although if the individual is suffering from a serious illness, whether COVID-19 or not, they might be eligible for unpaid FMLA time).

Second, the FAQs look to whether the employee is taking the time “to care for an individual who genuinely needs [the employee’s] care.” They also suggest a relationship (such as immediate family member or someone living in the same home) where there is an expectation that the employee would take care of the individual if ill. As a practical matter, this may prove difficult for employers to enforce, but it provides at least some limits. The regulations also suggest that the need for care also rises to the level where the employee is unable to work or telework.

Third, this issue does not arise for care of a “child” due to the closing of a school or unavailability of day care. Leave in those instances is available only for the employee’s own son or daughter.

Q134: I see that both paid sick leave (EPSLA) and extended family and medical leave (EFMLEA) are available if a “child care provider” is unavailable for a child. What does that mean?

A: The idea behind this part of the statute is that parents may have to stay home from work to care for children where day care is not available, the alternative potentially being employees being forced to choose between their job or income and leaving children at home unsupervised. The DOL tries to strike a balance of sorts between the desire to provide leave and determining whether it is actually needed.

Recognizing the wide array of child care arrangements, the DOL notes that a “child care provider” includes many kinds of paid and unpaid arrangements, including licensed day care centers, nannies, babysitters, and relatives such as grandparents, aunts, uncles, or even neighbors. It may be that such a provider becomes unavailable due to COVID-19 concerns, but the definition is not limited to paid child care centers.

Q135: Do both parents get paid sick leave or extended family and medical leave to care for children in the case of a school closure or the unavailability of day care?

A: This is a common question, and the simple answer is “no” as ordinarily only one parent is needed to stay home with the child. If both parents are employed, they would each have entitlement to both paid sick leave benefits and extended family medical leave benefits, but not for the very same hours and will likely have to work out between themselves how to handle the arrangements and/or consider arrangements such as flexible schedules, teleworking, and intermittent leave as part of that process. Employers should also take care to avoid stereotyping in the case of conflicts regarding which parent should be taking leave and which should be working.

Q136: What if the child’s school has moved to on-line instruction?

A: On-line instruction does not take the place of classroom supervision. A school that is closed but providing on-line or similar instruction is still “closed” for purposes of the statute, giving rise to entitlement to leave under the FFCRA.

Q137: How do we treat seasonal employees? What if their hours are irregular?

A: This is one of the more confusing areas under the statute. Many seasonal workers may not even be employed at this time of the year, and thus may have no entitlement under the statute. But if they are, there are several touchpoints.

Part-time employees are still employees, so they are covered and entitled to benefits. As noted above, entitlement to paid sick leave under the EPSLA is available immediately upon employment. To be entitled to extended family and medical leave under EFMLEA, the employee must have had 30 days of employment.

As the number of hours may vary, the DOL recommends a complex calculation that takes into account: (a) the average number of hours the employee worked over the last six months; (b) the average hourly rate of pay over that same period; and (c) the type of leave being requested (and whether it is a full base pay or only 2/3 base pay. The DOL’s April 20 FAQs contain several pages of how those calculations might play out in particular instances. Employers facing these issues should look to the most recent DOL guidance in this area.

Q138: What if the employee was previously on a leave of absence?

A: Both types of leave (paid sick leave and extended family and medical leave) are intended to apply in circumstances that are related to COVID-19. If the employee is not able to work for an unrelated reason, such as disability leave due to an illness that predated the pandemic, then they do not qualify for benefits. Once that condition ends, they may or may not be entitled to benefits depending on whether their situation fits within one of the six COVID-19 related reasons giving rise to leave.

If the employee was on a voluntary leave of absence, they may choose to return to work and collect benefits if they otherwise qualify for them.

Q139: We’ve had to close (or we may have to close) our business because it isn’t an “essential business” or “critical infrastructure” under our state’s stay-at-home or shelter-in-place order. Are we required to offer our employees paid leave under the FFCRA for any portion of the time that the business is closed?

A: The temporary regulations, as noted above, are not well written and leave some room for ambiguity. As the DOL has recognized, the new leave provisions only apply where the employer has work available for an employee that the employee is unable to perform for one of the qualifying reasons (i.e., medical conditions or school/day care provisions caused by the coronavirus). If an employer’s business is closed under a general stay-at-home or shelter-in-place order, there is no work available for the employee to perform, so the leave provisions arguably do not apply.

However, if the employer is operating and has work available for an employee, the employee will be entitled to EPSLA leave if he/she is unable to work (or telework) due to a stay-at-home or shelter-in-place order. Typically, this situation will only arise where the employee lives in a different jurisdiction than the facility where he/she is employed (i.e., near a state line), and the employee’s jurisdiction is subject to more restrictive stay-home requirements. The precise restrictions will turn on how the state or local government has worded its stay-at-home or shelter-in-place order.

Extended family and medical leave under the EFMLEA isn’t available as it does not provide benefits for quarantine or isolation orders, only leave required because the employee is home caring for a child whose school has closed or childcare is unavailable due to the COVID-19 virus.

In any event, Congress did adopt the Emergency Unemployment Insurance Stabilization and Access Act, which will provide emergency funding to state unemployment trust funds and expanded unemployment benefits. Many states have relaxed their filing rules for unemployment as well.

Q140: We may have to lay employees off in the future, after the FFCRA goes into effect, due to a lack of work caused by the pandemic. Will we have to offer paid leave under the FFCRA to the employees who are laid off?

A: No. A layoff for lack of work does not qualify an employee for benefits under the FFCRA, even if the lack of work is attributable to COVID-19 pandemic.

Q141: If we have to close our business in the future, and employees are receiving paid sick or family leave under the FFCRA, do they continue being paid even after the business closes?

A: No. Once there is no work available for an employee to perform, he or she is no longer qualified for the paid leave benefits available under the FFCRA. That’s the case even if the lack of work is due to the COVID-19 pandemic.

Q142: If we need to put employees on reduced schedules due to business slowdown are we required to provide employees with the newly expanded benefits to cover the reduced hours?

No. If you reduce employee hours because of a lack of work, you should not provide employees with the newly expanded benefits to make up for the reduced hours even if the lack of work is somehow related to COVID-19. If you do, you risk not receiving the associated tax benefits for this leave. Employees may be eligible for partial unemployment benefits due to a reduction in their work hours and states now have additional flexibility to provide such benefits. However, you should still provide employees the expanded benefits if a COVID-19 qualifying reason prevents them from working a full schedule.

Q143: Can employees receive unemployment benefits AND the newly expanded benefits?

A: No, at least not for the same time. For example, if you provide an employee with 10 weeks of qualified leave under the EFMLEA, the employee cannot also obtain unemployment benefits for those same 10 weeks. Although the DOL encourages employees to use unemployment where applicable, it looks at unemployment benefits as a distinct source of funds from those under the EPSLA and EFMLEA.

Q144: Are employees still entitled to their employer provided health care coverage while on approved FFCRA leave?

A: Yes, so long as the employees are on qualified leave under the FFCRA, the employer must maintain coverage during the leave period. Employees are generally still required to make any normal contributions to the cost of the health care coverage while on such leave. If an employee does not return to work at the end of the leave period, the employer will need to consult their benefit plans to determine the employee’s continued eligibility (if any) for benefits under the plan.

Q145: Does the Emergency Unemployment Insurance Stabilization and Access Act you just described require an employer to take any affirmative steps related to unemployment?

A: No immediate employer action is necessary. This provision expands unemployment benefits and provides grants for processing and paying claims to states who meet certain conditions, including taking steps to ease eligibility requirements and access to unemployment compensation for people directly impacted by COVID-19 (e.g., by waiving work search requirement and waiting periods).

Q146: If we are laying off more than 50 employees and the Federal WARN Act applies, can we avoid providing 60 days’ notice due to “unforeseeable business circumstances”?

A: Maybe. Under federal law, there is a strong argument that a sudden loss in business due to closures, quarantines, or a significant decrease in demand resulting from COVID-19 is an “unforeseeable business circumstance” or that COVID-19 is a “natural disaster,” either of which provides an exception to the 60-day notice requirement. But there are three important caveats. First, the longer you wait, the less likely the downturn was “unforeseeable.” The results of COVID-19 are rapidly becoming all too foreseeable. Second, even if there is an exception to the 60-day notice requirement, the other requirements in the WARN Act still apply. Third, the exceptions to the notice period are not the same everywhere.

California’s WARN Act in particular does not have an exception for “unforeseeable business circumstances,” but an executive order dated March 17, 2020, suspends the 60-day notice requirement so long as other aspects of Cal-WARN are followed and the notice contains certain required information. You should consult with California counsel before undertaking mass layoffs or plant closings in that state.

Q147: Do these two statutes override other federal and state law requirements?

A: No. Everything else still applies. Moreover, in states that already require paid sick leave, the leave available under the EPSLA is in addition to what an employee is eligible for under state law. In regard to the EFMLEA, the regular FMLA might apply even if the expanded leave provisions do not, and your employee who is sick or caring for a sick relative may still be entitled to up to 12 weeks of unpaid FMLA leave. Reasonable accommodation requirements under the Americans with Disabilities Act and state law may apply too, depending on the employee’s condition. The new law provides employees additional leave rights, but the law does not reduce other protections that employees have under existing federal, state, or local laws.

Executive and legislative responses have been swift and varied at all levels of government. You should ensure compliance with state and local law as these requirements evolve.

Q148: Do these provisions override collective bargaining agreements?

A: For the most part, no. Employers must continue to honor the sick leave provisions of labor agreements with their unions. The benefits under the FFCRA are in addition to employer-provided leave, including that under collective bargaining agreements.

Q149: How about multi-employer collective bargaining agreements?

A: Employers subject to multi-employer collective bargaining agreements may satisfy the FFCRA’s requirements for paid sick or FMLA leave by making contributions to a multi-employer fund, plan, or program consistent with the labor contract. Employees working under the multi-employer collective bargaining agreement must be able to secure payment from the fund, plan, or program based on the number of hours they have worked. It is important to note, however, that such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under FFCRA. Alternatively, the employer can elect to satisfy its obligations under the Act by other means, provided they are consistent with the employer’s bargaining obligations and the pertinent bargaining agreement.

Q150: When does the FFCRA become effective?

A: The DOL has announced April 1, 2020 as the effective date. It will not apply retroactively, however.

Q151: What tax or other benefits are available to offset the cost?

A: As noted above, subject to certain caps and restrictions, covered employers are eligible to receive refundable tax credits for paid sick and protected leave and for allocable costs related to the maintenance of health care coverage under any group health plan. These will be based on the type of leave and whether the leave is for the employee or the employee’s family member. Employers should document what leave employees have taken and the reasons supporting the need for leave to assist in claiming those credits.

the employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided by the employee upon request.

The DOL’s April 1, 2020 temporary regulations provide which documents an employer must keep (regardless of whether the leave was granted or denied) in order to claim tax credits. These records must be kept for four years. Those documents include:

Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees eligible for the credit, including records of work, telework, and paid sick leave and expanded family and medical leave;

Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;

Copies of completed IRS Forms 7200 that the employer submitted to the IRS;

Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their obligations, records of information provided to the third-party payer regarding the employer’s entitled to the credit claimed on IRS Form 941; and

Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to clai ma tax credit.

For information on the tax credits, go to:

https://www.irs.gov/forms-pubs/about-form-7200

As part of the March 27, 2020 $2.2 trillion package passed by Congress, forgivable loans are available for a period of time for smaller employers, as well as some medium-sized employers in the hospitality industries. For more information on the COVID-19 related small business loans to cover the costs, go to:

https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources

Q152: Are these programs permanent?

As of now, no. They are scheduled to expire effective December 31, 2020.

Q153: Can we count our non-U.S. employees towards the 500-employee threshold?

A: No. The temporary regulations explicitly state that, “To determine the number of Employees employed, the Employer must count all full-time and part-time Employees employed within the United States at the time the Employee would take leave.” It goes further to explain that, “within the United States” means any State within the United States, the District of Columbia, or any Territory or possession of the United States.

The summary provided in the annotation includes the following example: If an employer employs 1,000 employees in North America, but only 250 are employed in a U.S. State, the District of Columbia, or a territory or possession of the United States, that employer will be considered to have 250 employee and is thus subject to the FFCRA.

Q154: Can I require documentation, such as under the FMLA?

The regulations make clear that employers not only can but should document the reasons why an employee has been granted leave, in large part to assist in obtaining the corresponding tax credits. Both the DOL and IRS have released separate statements of the necessary types of documentation, which differ slightly. Combining the two sets of requirements, the documentation from the employee must contain:

The employee’s name;

The dates for which the leave is requested;

The qualifying reason for the leave;

Oral or written statement that the employee is unable to work because of the qualified reason for leave. A written notice is preferable, and if the employee provides only verbal notice, the employer should follow up to require a written notice as well;.

If leave is being taken based on a school closing or child care becoming unavailable, the age of the child and, if the child is over the age of 14 and leave is sought to care for the child during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

Note that while an oral statement is sufficient for number 4 above for DOL purposes, the IRS requires a written statement. The employer should request a written statement from the employee, but if the employee provides only a verbal notice, the employer should attempt to confirm the conversation in writing, such as through an email.

If the employee is seeking to take paid sick leave because of a government quarantine or isolation order, the employee must also provide the employer with the name of the government entity that issued the order.

If an employee is seeking to take paid sick leave because of a health care provider’s instruction to self-quarantine or isolate, the employee must also provide the employer with the name of the health care provider who advised the employee to do so.

Note that the employer should keep a record of the documentation as it may be needed to support a later request by the employer for tax credits.

The reasons for extended leave under the EFMLEA are narrower than those for sick leave under the ESPLA, the most common of which will be the closing of a school/unavailability of child care. The employee must provide written documentation that includes information:

The name of the son or daughter being cared for;

The son or daughter’s age;

The name of the school/place of care/child care provider that is now unavailable;

A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes expanded family and medical leave; and

If the child is over 14 and leave is sought to care for the child during daylight hours, a statement that special circumstances exist requiring the employee to provide care.,

When an employee is seeking leave to care for a child over age 14, the DOL guidance makes no reference to requiring a statement about special circumstances, but the IRS guidance says that that this information “should” be provided.

Q155: I’ve heard that the DOL might delay enforcement of the act. Should I wait?

A: Absolutely not! The DOL has indeed stated that it does not intend to bring enforcement actions for violations occurring between March 18 and April 17, 2020. Only 17 of those days occurred after the act took effect, and the DOL has indicated that its efforts before April 17 were directed to helping employers bring themselves into compliance.

The DOL did so in large part by releasing the temporary regulations, poster, and the various sets of DOL FAQs discussed in this set of FAQs. These were intended to help employers begin their compliance efforts.

In addition, both the EPSLA and EFMLEA have private enforcement provisions, so even if an employer may not but subjected to an enforcement action during the brief initial period, private litigants can and likely will commence suit if the employer denies benefits improperly.

Employers should be working now to bring their policies into compliance.

Q156: When were regulations released?

A: The DOL promulgated temporary regulations on April 1, 2020 and then amended some of them on April 10. Many of the regulations track the FAQs the DOL released between March 24 and April 20, but others contained additional material. The significant new material included:

the temporary regulations address the question of whether and when a state or local government’s “shelter-in-place” or similar order might constitute a “quarantine” or “isolation” order for purposes of determining entitlement to 80 hours of paid sick leave under the act;

the regulations better define the kinds of familial or other relationships that might permit an employee to take leave for “caring for an individual” with a COVID-19 related condition;

the provisions relating to the need for leave to care for a son or daughter due to the closure of a school or childcare includes consideration of whether others, such as family members, could watch the child;

extended family and medical leave is under the FMLA and counts against the 12-week maximum in whatever 12-month period the employer is using for FMLA purposes;

important rules for documentation, including a requirement to retain records relating to FFCRA leave for four years.

The DOL introduced additional FAQs the following day reflecting many of the matters raised in the temporary regulations it had not fully explained before. Most of these new FAQs relate to specific situations and details about how leave may work in particular situations, such as the types of relationships that might give rise to entitlement to paid sick leave or extended family and medical leave, the rights of employees on medical leave for reasons other than COVID-19, and whether employees can take paid sick leave for their own COVID-19 illness without seeking medical advice. Due to the speed of the release, the temporary regulations included a number of mostly, but not entirely, minor errors that were corrected by subsequent revisions on April 10.

Q157: What other guidance has the DOL provided?

A: The DOL released a series of FAQs during the week of March 23, 2020 and into mid-April. These were intended to give employers advice in advance of the temporary regulations it issued on April 1, 2020. The material in those FAQs was largely also contained in the temporary regulations or its commentary and has been incorporated into the FAQs above. However, for those with specific questions, here are the primary areas they covered.

Fifth Updated DOL FAQs (April 20, 2020)

The fifth set covers a set of fairly narrow, but in some cases important, issues:

Whether and how “shelter-in-place” and similar orders might trigger rights to paid leave;

Whether and how employers can require concurrent use of accrued paid leave and expanded family and medical leave; and

How to calculate the amount of paid leave when the employee has worked irregular hours.

Fourth Updated DOL FAQs (April 3, 2020)

The DOL introduced additional FAQs on April 3 reflecting many of the matters raised in the April 1 temporary regulations it had not fully explained before. Most of these new FAQs relate to specific situations and details about how leave may work in particular situations, such as the types of relationships that might give rise to entitlement to paid sick leave or extended family and medical leave, the rights of employees on medical leave for reasons other than COVID-19, and whether employees can take paid sick leave for their own COVID-19 illness without seeking medical advice.

Third Updated DOL FAQs (March 28, 2020)

The DOL released a third set of FAQs on March 28, 2020. While much of the material was directed toward how employees might enforce their rights and on issues that might not be of concern in most situations, it did provide helpful guidance to resolve several common problems raised by employers. Among other things, the March 28 FAQs:

Made clear that expanded family and medical leave is counted much like time under the FMLA and thus, to determine the available number of weeks employers should look at the total amount of FMLA/EFMLEA time taken during the year they use to measure FMLA usage;

Fleshed out the requirements for an employer to qualify for the exception available to employers with fewer than 50 employees under certain circumstances (although the procedure has not yet been spelled out);

Set forth a long list of health care providers and emergency responders who might be excluded by the employer from paid sick leave or expanded family and medical leave.

Second DOL FAQs (March 27, 2020)

The DOL released a set of 14 FAQs on March 24, 2020, and then supplemented them three days later (on March 27) to address many areas not addressed in the language of the act itself. A number of these new FAQs relate to nuts-and-bolts, practical aspects of implementing the FFCRA.

Among the March 27, 2020 supplemental FAQs:

The FAQs describe the kinds of documentation employers can and should be requesting in connection with employee requests for FFCRA leave and pay;

Several of the new FAQs address telework and scheduling issue;

What circumstances will give rise to use FFCRA leave on and intermittent basis;

Layoffs occurring before and after the effective date;

The effect of stay-at-home and shelter in place orders on entitlement to FFCRA leave;

Emphasis on unemployment compensation benefits being another pool of benefits affected employees can tap;

Coordination of the employer’s own leave policies with FFCRA leave;

Special rules applicable to employers subject to multi-employer collective bargaining agreements.

The new FAQs clarify that the leaves provided for in the FFCRA generally can be taken on an intermittent basis only if the employer and the employee agree. They also confirm that employees who are laid off or furloughed due to a lack of available work are not eligible for FFCRA leave, even if the lack of work is due to the ongoing COVID-19 pandemic.

Initial DOL FAQs (March 24, 2020)

Previously, on March 24, 2020, the United States Department of Labor had released a shorter set of Q&A’s. While these do not have the same effect as the anticipated implementing regulations, they do shed light on a handful of issues of importance to employers. For the most part, the Q&A’s do not depart from the expected requirements, but they do make some small but significant changes.

Most importantly the DOL moved the date of compliance up one day, to April 1, 2020. In separate guidance, the DOL has suggested that its efforts in the first 30 days will be directed to assisting employers in compliance, but that should not keep employers for planning for compliance now.

The other significant matters touched upon include:

The DOL has confirmed that employers with more than 500 employees are not required to comply with the Act. It has also issued guidance on when nominally separate employers can be combined, guidance that is largely derived from its past guidance under the FMLA and FLSA. Those are discussed further below.

The 500-employee threshold is measured as of the time the leave is taken.

The DOL appears to be creating an exception for employers for fewer than 50 employees if compliance would jeopardize the viability of their business as a going concern, but is leaving the exact criteria to forthcoming regulations that have not yet been released.

The amount of benefits for hourly employees will be based on their “regular rate” (so it includes things such as commissions and nondiscretionary bonuses). It will also include overtime subject to the 80-hour cap for paid sick leave under the EPSLA. More about that below.

Notice available (March 25, 2020)

On March 25, the DOL released the model notices employers will be required to post conspicuously in the workplace, in a manner much as they have done for past posters under the FLSA and other employment laws. The poster is available here.

Again, the FFCRA does not impose new unemployment compensation requirements on employers, but states may require employers to take steps so that they can meet the above goals. Additionally, the FFCRA provides that the Secretary of Labor may prescribe regulations, operating instructions, or other guidance necessary to carry this out, so employers should be on the lookout for that as well.