The Families First Coronavirus Response Act (FFCRA) is set to take effect on April 1, 2020, and will expire on December 31, 2020 and applies to private sector employers with fewer than 500 employees and all public sector employers. On March 24, 2020, the Department of Labor ("DOL") issued a Fact Sheet for Employers and a Questions and Answers (Q&As) document regarding the Families First Coronavirus Response Act ("FFCRA"). On March 26, the DOL released an expanded set of Q&As, which added questions 15-37 concerning the FFCRA. Below is a summary of the pertinent information contained in the DOL's new guidance.
Documentation
Employers are entitled to request information and obtain documentation supporting an employee's need for leave under the FFCRA and establishing that the need meets one of the qualified reasons. (See Q&A Nos. 15-16). This documentation may include a copy of the employee's Federal, State or local quarantine or isolation order, written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19, or a notice indicating the employee's child's school, place of care, or childcare provider is closed. If the employer intends to claim a tax credit under the FFCRA for payment of sick leave wages, it should retain this documentation for its records.
Teleworking
The DOL also confirmed that employers may offer employees the option to telework but are not required to do so. (Q&A No. 17). Even if telework is offered, paid leave under the FFCRA is still available if the qualifying reason for leave prevents the employee from performing the telework. (Q&A Nos. 18-19). Significantly, the DOL also advises that the employer and employee may agree to adjust the employee's normal work schedule to allow for telework and, if so, then there is no need for the employer to provide leave. Under this guidance, the key takeaway is that both the employer and the employee need to agree to the arrangement. The specific wording from the DOL is as follows:
"If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule." (Q&A No. 18).
Additionally, if an employee is able to telework while caring for a child who is home due to their school or place of care being closed due to COVID-19, paid sick leave and expanded family and medical leave is not available.
Intermittent Leave
Until now, a point of confusion has been whether an employee could take intermittent leave under either of the two types of leave provided. The DOL explained that employers may allow employees to take Emergency Paid Sick Leave (EPSL) or E-FMLA leave intermittently under the FFCRA while teleworking. (Q&A Nos. 20-22). Specifically, the DOL advises that, if an employee is teleworking, intermittent leave is available upon agreement between the employer and employee. (Q&A No. 20). If not teleworking, employees are required to take EPSL in full-day increments if the leave is for any qualifying reason other than needing to care for a child whose school/childcare has closed. (Q&A No. 21). In those instances, once the employee begins taking EPSLA leave, he or she must continue to take that leave until it is either exhausted or the need for leave is no longer present. Notably, if the employee does not exhaust the full 80 hours (full-time employees) of EPSLA before the need for the leave is no longer present, he or she can still use the balance if another qualifying reason arises prior to December 31, 2020.
Similarly, if the employee is not teleworking, and the need for EPSL leave or E-FMLA leave is due to a child's school/childcare facility closing, then intermittent leave is only available if the employer and employee agree. (Q&A Nos. 21-22). However, if the employer and employee can agree to a change in the employee's schedule, leave is not available. The DOL encourages employers and employees to collaborate to achieve maximum flexibility.
Business Closures and Furloughs
The DOL confirmed that, if an employee is sent home due to a business closure (caused by economic reasons or pursuant to a Federal, State, or local directive), the employee is not entitled to EPSL or E-FMLA leave. (Q&A Nos. 23-25, 27). This is true regardless of whether the business closed before or after the FFCRA's effective date. However, as noted by the DOL, employees may be entitled to unemployment compensation in that situation. The same is true for furloughs. (Q&A No. 26).
Multi-employer Collective Bargaining Agreement
Employers may satisfy their obligations under the E-FMLA by making contributions to a multi-employer fund, plan, or other program in accordance with their existing collective bargaining obligations. (Q&As 36-37). These contributions must be based on the amount of E-FMLA leave to which each of employee is entitled under the Act based on each employee's work under the multi-employer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, employers may also choose to satisfy their obligations under the Act by other means, provided they are consistent with their bargaining obligations and collective bargaining agreement.
Other Considerations
Employees may not use EPSL or E-FMLA leave to supplement a reduction in their scheduled work hours. However, an employer and an employee may agree to use existing PTO to bring the employee's pay up to 100% whenever the employee takes EPSL or E-FMLA leave in circumstances where they are only entitled to 2/3 pay. (Q&A Nos. 31-33).
Employees who elect to take EPSL or E-FMLA leave are entitled to continued group or family health coverage during their leave on the same terms as if they continued to work.
Employers are free to provide benefits in addition to those required by the FFCRA; however, employers will not be eligible for a tax credit for those amounts in excess of the FFCRA's statutory limits. (Q&A No. 34). The Internal Revenue Service provides additional guidance on relevant tax credits here.