It seems like so long ago that the Families First Coronavirus Response Act (FFCRA) was enacted, but it was only back on March 18th. It is now April 2,2020, the law is in effect and the Department of Labor has issued a temporary ruling for the implementation of the Act, specifically for the Emergency Family Medical Leave Expansion Act, the Emergency Paid Sick Leave Act and the Tax Credits that companies are eligible for based on the wages paid under the FFCRA. As a reminder, here is an overview of the Paid Sick Leave available to employees as paid by their employer.
Because this is a temporary ruling, when the final ruling is made, there may be some slight differences just as we’ve seen in some of the guidance as it has been released. However, this does put us that much closer to a final ruling of the law. The overview of some components of the temporary ruling provided below is only a small sampling of the ruling and is in not all inclusive of the details and intricacies of this law. I strongly recommend that as you have a situation in which an employee is potentially covered under either the Paid Sick Leave Act or the Emergency FMLA Expansion Act, that you reach out to your HR resource for guidance on each individual situation.
Under 50 Employee Small Business Exemption The Small Business Exemption is available for companies with less than 50 employees to be exempt from providing paid leave to an employee that is unable to work or telework due to the care for their son or daughter (under the age of 18) if the child’s school or place of care has been closed, or the child-care provider is unavailable, due to coronavirus if such leave “would jeopardize the viability of the business as a going concern”. That means the exemption is only for the 12 weeks of Emergency Family Medical Leave Expansion Act (EFMLA) and the 1 qualifier under the 2 week Paid Sick Leave Act, but not for the 5 other qualifiers under the Paid Sick Leave Act. The Department of Labor outlines in the guidance that a small business may claim the above exemption if an authorized officer of the business has determined one the below items and has sufficient documentation to back-up the exemption:
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;
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
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.
See questions #58 and #59 here in the DOL Q&A Sheet. The documentation that your company prepares with the facts and circumstances to justify the denial of paid leave is not to be sent to the Department of Labor, but rather retained internally in your own files.
Semantics The ruling revises the wording under the Emergency Family Medical Leave Expansion Act of “10 days” to “2 weeks” when referring to the first portion of the Leave being unpaid. The original language said that the first 10 days of the leave was unpaid, but the language was changed to 2 weeks for consistency and to avoid confusion. The Paid Sick Leave can still cover the unpaid period of the EFMLA.
Employee Eligibility Employees that are not working due to the shutdown of operations are not subject to Paid Sick Leave or Emergency FMLA. That means if your business operations have ceased and there is no work to be done by the employee even if they are considered an “active employee”, they are not entitled to the Paid Sick Leave or the EFMLA. They may be eligible for unemployment though. Additionally, if an employee goes out on leave and the operations then shut down and there is no work for them to do, their leave pay ends as of the date of the shutdown. Questions #23-28 in the DOL guidance address a variety of scenarios related to eligibility and no work available and furloughs as this can get pretty tricky. An employee must be employed with the company for 30 days prior to the leave to be eligible for the EFMLA. If an employee was laid off or separated and is then rehired before December 31st, they are eligible for coverage based on their length of service prior to the layoff. The example provided in the temporary ruling is “For example, an employee who was originally hired by an employer on January 15, 2020, but laid off on March 14, 2020, would be eligible for leave under the EFMLEA and the EPSLA, if the same employer rehired the employee on October 1, 2020.”
Intermittent Leave Intermittent leave of the Paid Sick Leave Act and Emergency Family Medical Leave Expansion Act are allowable except for employees that still report to a worksite and are taking the Paid Sick Leave because of items 1-4 & 6. As a reminder, those include is 1. Subject to a federal, state or location quarantine or isolation order related to COVID-19, 2. Advised by a health care provider to self- quarantine due to COVID-19 concerns, 3. Experiencing COVID-19 symptoms and seeking medical diagnosis, 4. To care for an individual (not just a family member) subject to federal, state or location quarantine or isolation order related to COVID-19 or Advised by a health care provider to self- quarantine due to COVID-19 concerns or 6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. Intermittent leave is not permitted in this situation to mitigate the risk of exposure to others at the work location.
Documentation and Request for Leave Employees requesting leave are required to provide documentation related to the leave that outlines a variety of details including: The employees name, date(s) of leave requested, the COVID-19 qualifying reason for leave, and a statement as to why the employee can’t work or telework. The employee is also required to provide details related to the qualifying reason such as the doctor ordering the quarantine, the government entity issuing the isolation order and the like. The Department of Labor requires employers to retain all documentation related to any requests for leave under the Families First Coronavirus Response Act for a period of four (4) years. This documentation is also required for the purposes of receiving the tax credits for the amount paid under either one of the leave acts. The documentation should show how the amount of qualified sick and family leave waged were calculated and paid. The IRS has issued guidelines and a FAQ around the Tax Credits for additional guidance.
What should you do if you haven’t already?
Make sure that you have provided the required notice to all employees that can be found here.
Set up a process internally of how to document and process requests for paid leave
Ensure that you’ve set up separate payroll codes for the Paid Sick Leave and Emergency FMLA for tracking purposes
Call Employers Advantage LLC with any questions or for guidance related to the paid leave acts
If you are interested in providing your input to the Department of Labor about the Families First Coronavirus Response Act, they are hosting an online dialogue through April 10th. You can submit your ideas, comments and feedback online here. https://ffcra.ideascale.com/ Additional information including Fact Sheets for Employees, Fact Sheets for Employers, a robust Q&A Sheet as well as the required postings and instructions can be found on the DOL page here. As always, the Employers Advantage LLC team is here for guidance and we can be reached at 980-422-7953 or via our website.
Stay strong and be well – Deanna and the Employers Advantage Team