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DOL Updates and Supplements Guidance on Families First Coronavirus Response Act (FFCRA)

Stacy Williams

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On March 28, 2020, the U.S. Department of Labor added to its previously provided Frequently Asked Questions; these are briefly summarized below.

As previously reported, the Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, and includes provisions aimed at mitigating the effects of the COVID-19 crisis on businesses and individuals. Key components included the requirement that employers with fewer than 500 employees will be required to provide a certain amount of paid sick and paid family leave to employees affected by COVID-19 and will receive corresponding employment tax credits. In addition, the FFRCA temporarily expands the reasons for which employees working for enterprises with fewer than 500 employees may take leave under the Family and Medical Leave Act (FMLA).

On March 28, 2020, the U.S. Department of Labor ("DOL") added to its previously provided Frequently Asked Questions (FAQs), to help address some open questions regarding the FFCRA. These are briefly summarized below. This page has the full text of the DOL's FAQs: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Documentation Needed to Support Paid Sick or Paid Emergency FMLA Leave under CCFRA

In a bit of a departure from the guidance provided in an earlier version of the FAQs, the DOL clarified that if an employer intends to claim a tax credit for FFCRA paid sick or emergency FMLA leave, employers will need to retain "appropriate documentation" in their records. The DOL advises that employers "should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit." It adds that employers are not required to provide leave if materials sufficient to support the tax credit are not provided.

For employees taking leave to care for a child whose school is closed or for whom child care is unavailable due to the public health emergency, the employer may require "any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests." As examples of this type of documentation, the DOL suggest this might include "a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider."

Interaction of FFCRA Leave and Employer-Provided Paid Leave

The DOL states that employees may not use employer-provided leave simultaneously with any leave under FFCRA, unless the employer agrees to allow the employee to supplement the amount they receive from paid sick leave or expanded family and medical leave under the FFCRA. The DOL clarified, however, that leave under the FFCRA is in addition to any employer-provided leave entitlements. Employees may choose to use existing paid vacation, personal, medical, or sick leave to supplement the amount they receive from paid sick leave or expanded family and medical leave, up to the employee's normal earnings.

Employers are not required to permit an employee to use existing paid leave to supplement the amount the employee receives from paid sick leave or expanded family and medical leave. Employers may not claim, and will not receive tax credit, for such supplemental amounts. Finally, employers may not require employees to supplement FFCRA pay with any paid leave amounts otherwise available to the employee under the employer's paid leave plans. Only employees may make that decision.

Interaction Between Paid Sick and Paid Family Leave Provisions of the FFCRA and Overall Leave Entitlement

The DOL explains that "[p]aid sick leave [under FFCRA] is not a form of FMLA leave and therefore does not count toward" an employee's 12-week FMLA allotment. It is therefore possible that an individual employee could take up to 14 total weeks of leave under FFCRA, 2 weeks (or 80 hours) of paid sick leave, followed by 12 weeks of paid Emergency FMLA. For example, if an employee were to take 80 hours of paid sick leave for reasons other than school closures or lack of child care, e.g., for the employee's own illness, and the employee had not previously taken any FMLA leave, then the employee would still be entitled to an additional 12 weeks of emergency FMLA for "a qualifying need related to a public health emergency," i.e., if the employee is unable to work or telework due to school closures or lack of child care resulting from the public health emergency.

Similarly, an employee could elect to take 12 weeks of emergency FMLA leave, of which the first 2 weeks are permitted to be unpaid under FFCRA. The employee could utilize employer-provided leave benefits to cover those first two weeks, so the employee would be paid for that time. The employee then would be entitled to take an additional 80 hours of emergency paid sick leave under FFCRA.

If the employee does not have or does not want to use employer-provided paid leave to cover the first two weeks of emergency FMLA which FFCRA allows to be unpaid, the employee has the option to use the 80-hour paid sick leave entitlement of FFCRA to run concurrently with the employee's emergency FMLA leave. In such a case, the employee would be entitled to only a 12-week total period of leave under FFCRA.

Clarification of Exemption for Employers with Fewer Than 50 Employees

The DOL states that employers, including religious or nonprofit organizations, with fewer than 50 employees (small business) are exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons 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 paid sick leave or expanded family and medical 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.

It's important for small businesses to note that this exemption is ONLY available for situations the above conditions apply AND which involve school closures/child care reasons for FFCRA paid sick and for FFCRA emergency FMLA leave. The exemption will NOT be available for employers with fewer than 50 employees for FFCRA paid sick leave taken for reasons other than school closures/child care issues.

Who Is a Healthcare Provider or an Emergency Responder under FFCRA?

The DOL put forth a very broad interpretation of which employees are considered health care providers:

• Any individual employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
  • This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
• Any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility.
• Any individual employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
• Any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state's or territory's response to COVID-19.

The DOL's definition of emergency responder is also very broad. According to the DOL, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of 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, 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 that 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 response to COVID-19.

ADP will continue to monitor new developments related to the FFCRA.

Related resources

• Do you know which type of employee leave applies? This infographic shows the criteria for three types of leave: Emergency Family and Medical Leave Expansion, Emergency Paid Sick Leave and Family and Medical Leave Act. View the infographic.
• DOL Releases New Guidance on Families First Coronavirus Response Act (FFCRA)
• COVID-19 Workplace Impact and Employer FAQs: The Families First Coronavirus Response Act
• Keep up-to-date on this and other legislation by subscribing to ADP's Eye on Washington alerts.
• Find FAQs, checklists, webcasts, and the resources to help you protect and manage your workforce here: ADP Employer Preparedness Toolkit — Coronavirus Disease (COVID-19)