The Families First Coronavirus Response Act & Department of Labor FAQs

Updated April 14, 2020

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) and on April 6, 2020, the federal Department of Labor (DOL) issued temporary implementing regulations. The DOL also prepared a frequently asked questions page to provide guidance to employers on application of the FFCRA. The DOL has revised its FAQs several times, so we encourage employers to check the DOL’s website on a regular basis.

You can read our previous blogs about the FFCRA (here) and the DOL’s implementing regulations (here.)

1. What benefits does the FFCRA provide?

The FFCRA created several temporary measures to assist employees and employers during the pending COVID-19 pandemic. These include:

A. The Emergency Family and Medical Leave Expansion Act (EFMLEA): The EFMLEA provides partially paid leave for eligible employees who cannot work (or telework) due to a need to care for the employee’s son or daughter (under 18 years of age, or over 18 if the child has a mental or physical disability and is not independent) in the event of school or childcare closure due to a COVID-19 emergency.

B. The Emergency Paid Sick Leave Act (EPSLA): The EPSLA provides paid sick time if an employee is unable to work (or telework) due to a need for leave 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 a quarantine order or has been advised to self-quarantine.

5. The employee is caring for the employee’s son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of the 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.

C. The FFCRA provides for tax credits for paid sick and paid family and medical leave payments (subject to applicable caps). Paid leave benefits paid in excess of the applicable caps (see below), may not be credited against payroll tax.

2. How much time off (paid and unpaid) do employers need to provide under the FFCRA and how should it be calculated?

EPSLA

Full-time employees (normally scheduled to work 40 or more hours per week): 80-hours

Part-time employees (normally scheduled to work fewer than 40 hours per week): the average number of hours the employee works over a typical two-week period. If the part-time employee’s schedule varies, employers may use a six-month average.

Calculation of paid leave varies based on the qualifying reason:

If leave is taken pursuant to paragraphs (1.B., 1-3) above (i.e., due to isolation/quarantine order/advice or COVID-19 symptoms), it should be calculated based on the employee’s regular rate of pay (no less than the applicable minimum wage), up to $511 per day, or $5,110 in the aggregate.

If leave is taken pursuant to paragraphs (1.B., 4-5) above (i.e., to care for an individual who was ordered/advised to self-quarantine, to care for a child whose school was closed, or for other substantially similar condition), it should be calculated based on two-thirds of the employee’s regular rate of pay, up to $200 per day, or $2,000 in the aggregate.

EFMLEA

All eligible employees are entitled to up to 12-weeks of leave:

The first two weeks (10 days) of leave may be unpaid, but an employee may elect to use any accrued vacation or sick leave, including sick leave under the EPSLA.

The following ten weeks must be paid at not less than two-thirds of the employee’s regular rate of pay for the hours the employee would normally be scheduled to work (unless the schedule varies, in which case you may use the 6-month average – see above), up to $200 per day, or $10,000 in the aggregate.

3. How do I determine the employee’s regular rate of pay for FFCRA paid benefits?

Per the DOL, the regular rate of pay used to calculate paid leave under the FFCRA is the average of the employee’s regular rate over a period of up to six months prior to the date of leave.

For new hires (who have not yet completed six months of employment), the regular rate of pay is the average of the employee’s regular rate for each week employee has worked for the employer.

See also 29 CFR 826.25 regarding calculation of the regular rate under FFCRA.

If an employee is paid with commissions, tips, or piece rates, these must be incorporated into the above calculation.

4. What does “unable to work (or telework)” mean?

Per the DOL’s guidelines, an employee is unable to work if the employer has work, or permits the employee to telework, but the employee is unable to perform work because of one of a qualifying reason under the FFCRA.

“Unable to work” does not generally include situations where the employer and employee agree on a different schedule, outside the employee’s normally scheduled hours (for instance early in the morning or late at night).

5. When does FFCRA go into effect?

Per DOL guidelines, as of April 1, 2020.

In a March 24, 2020 field assistance bulletin, the DOL stated it will not enforce the FFCRA until April 17, 2020 if the employer has made reasonable, good faith efforts to comply with the Act. An employer acts “reasonably” and in “good faith” when all of the following facts are present:

The employer remedies any violations, including by making all affected employees whole as soon as practicable.

The violations of the Act were not “willful”.

The DOL receives a written commitment from the employer to comply with the Act in the future.

6. Does the FFCRA apply if the workplace was closed prior to April 1, 2020?

No, but employees may be eligible for unemployment insurance benefits.

7. Who is an eligible employee under the FFCRA?

EFMLEA

Any employee who was on the employer’s payroll for 30 calendar days immediately prior to the employee’s leave.

The DOL provides the following example: “if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.”

EPSLA

Any employee employed by a covered employer.

8. Are employees who were laid off (even temporarily) on or after April 1, 2020, eligible for FFCRA benefits?

No, but they may be eligible for unemployment insurance benefits. Rehired employees may be eligible for EFMLEA benefits provided they were on the Employer’s payroll for thirty or more of the sixty calendar days prior to the date of lay off. See 29 CFR 826.30(b).

9. If an employer closes its business after April 1, 2020, are employees employed at the time of the closure eligible for FFCRA benefits?

If an employee is on paid sick leave (EPSLA) or expanded family and medical leave (EFMLEA) at the time of the closure, the employer must pay the employee for any paid sick leave or expanded family and medical leave the employee used before the date of closure. Once the employer closes, employees are not entitled to any further benefits under the FFCRA.

10. Who is a covered employer under the FFCRA?

Employers with 500 or fewer employees.

Per the DOL, the “500 of fewer” threshold is based on all part- and full-time employees, employees on leave, jointly-employed employees, and temporary employees (including day laborers) employed anywhere in the United States, the District of Columbia, or any territory or possession of the United States, as of the time the employee’s leave is taken.

Workers who are properly classified as independent contractors under the Fair Labor Standards Act (FLSA) are not considered employees for purposes of the 500-employee threshold.

Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees, in which case, all common employees must be counted.

11. Is there a small-business exemption under the FFCRA?

Yes. The temporary regulations (29 CFR 826.40(b)) exempt employers with fewer than 50 employees from the requirement to provide school-closure leave under the EFMLEA and EPSLA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

A small business under 29 CFR 826.40(b) is entitled to the exemption if an authorized officer of the business has determined that:

The leave requested under the FFCRA 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(s) requesting paid 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(s) requesting paid leave, and these labor or services are needed for the small business to operate at a minimal capacity.

If a small employer decides to deny FFCRA leave(s), it must document the facts and circumstances that meet the criteria set forth above to justify such denial.

12. Is there an exemption from FFCRA requirements for health care providers or emergency responders?

Yes. Per the DOL (FAQs #56-57) and temporary regulations (29 CFR 826.30(c)), employers who employ a “health care provider” or an “emergency responder” are not required to provide FFCRA benefits “on a case-by-case basis.”

Health Care Provider: For purposes of the exemption, the DOL defines “a health care provider” as anyone 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.

The term also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

This also includes anyone 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. This also includes 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 or the District of Columbia’s response to COVID-19.

Emergency Responder: Per the DOL, an “emergency responder” is defined as: 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 or the District of Columbia’s response to COVID-19.

To minimize the spread of COVID-19, the DOL encourages employers to be “judicious” when using this definition to exempt health care providers/emergency responders from the provisions of the FFCRA.

13. Does regular FMLA leave run concurrently with EFMLEA leave?

Based on the current version of the DOL’s FAQ, the answer appears to be – yes. An employee may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including EFMLEA.

The DOL provides the following example:

“[A]ssume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because [EFMLEA] is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.”

For California employers, the FMLA and California Family Rights Act (CFRA) generally run concurrently for most types of leave (not pregnancy related). However, if an employee takes 12 weeks of FMLA/EFMLEA school-closure leave, and then has a serious health condition or needs to care for a family member with a serious health condition, the employee may then still be eligible for additional 12 weeks under CFRA alone (as school-closure leave is not covered under CFRA).

Note, however, that paid sick leave under the EPSLA is separate from any other leave provided under Federal, State, or local law.

14. Can I pay employees more than the required caps above to supplement employee wages?

Yes. But you may not claim a tax credit for the additional amounts paid.

15. Can leave under the FFCRA be taken intermittently while teleworking?

Yes, in any increment, based on an agreement between the employee and the employer. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

16. Can sick leave under the EPSLA be taken intermittently while working at the usual worksite?

Depends on the qualifying reason:

If paid sick leave is used for school-closure/unavailability of child care provider, and there is a mutual agreement between the parties, leave may be taken intermittently. The mutual agreement can provide for less than full workday increments.

If paid sick leave is taken for any reason other than school closure (isolation/quarantine order or request, COVID-19 symptoms, or caring for an individual subject to quarantine, etc.), it must be taken in full-day increments, until the employee either (1) uses the full amount of paid sick leave, or (2) no longer has a qualifying reason for taking paid sick leave.

17. If an employer reduces an employee’s work hours, can an employee use FFCRA paid benefits to make-up for reduced hours?

No. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.

18. Can I deduct paid sick leave already provided under California law/Company policy from the amounts required under the EPSLA?

No. Any paid sick leave required under the EPSLA is in addition to an already existing paid sick leave policy or benefit.

19. Can I instruct employees to use paid sick leave under Company policy prior to using leave under the EPSLA?

No. The Act and Regulations (29 CFR 826.160(b)) specifically say that an employee may first use paid sick time under the EPSLA for any qualifying reason, and that an employer may not require the employee to use other paid leave before the employee uses the federal allotment.

20. Is sick leave under the EPSLA “use-it, or lose-it”?

Once the FFCRA expires (December 31, 2020), employees are no longer entitled to benefits under the Act.

21. What are the notice/documentation requirements under the FFCRA?

For employers:

The DOL has created a model notice that all covered employers must post in a conspicuous place where employees can see it. If employees are not working (e.g., due to State order), then you must provide notice in another way to ensure receipt (e.g., mail, email, internet, intranet, etc.) The DOL is translating the poster into other languages.

For employees:

Per 29 CFR 826.100, employees who wish to take EPSLA or EFMLEA leave must provide the following information (either orally or in writing):

1. Employee’s name;

2. Date(s) for which leave is requested;

3. Qualifying reason for the leave; and

4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.

If the request is for sick leave under the EPSLA, additional information is required:

1. If leave is requested due to a quarantine or isolation order, the employee must provide the name of the government entity that issued the order;

2. If leave is requested due to a health care provider’s advice that the employee be self-quarantined, the employee must provide the name of the health care provider.

3. If leave is requested to care for an individual who was ordered to self-quarantine or is subject to a quarantine order, the employee must provide either: (a) the name of the government entity that issued the quarantine or isolation order to which the individual being cared for is subject; or (b) the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID–19.

If the request is for leave to care for the employee’s child due to school closure or a child care provider’s unavailability, the following additional information is required:

1. The name and age of the son or daughter being cared for;

2. The name of the school, place of care, or child care provider that has closed or become unavailable; and

3. A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes school-closure leave.

For employees who seek school-closure leave to care for a child older than 14, the IRS further requires a statement that special circumstances exist that require the employee to provide care.

An employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

22. How long do employers have to keep records regarding an employee’s request for leave?

Per 29 CFR 826.140, employers are required to keep the documentation described above for four years, regardless of whether leave was granted or denied. If information was provided orally, the employer is required to create the documentation and maintain it for four years.

23. Must employers continue group health coverage during FFCRA leaves?

Yes.

24. Do employees on leave have a right to be reinstated to the same or nearly equivalent position?

Yes, but employees on leave may not be protected from employment actions, such as layoffs, that would have affected the employee regardless of leave.

Notwithstanding the above, an employee who took EFMLEA leave may be denied reinstatement if:

The employer has 25 or fewer employees;

Due to COVID-19 related economic reasons the position no longer exists;

The employer made reasonable efforts to restore the employee to the same or equivalent position;

The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and

The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier.

Sue M. Bendavid, Nicholas Kanter and Tal Burnovski Yeyni are attorneys in our Employment Practice Group.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.