The U.S. Department of Labor (DOL) is issuing ongoing guidance regarding the application of the Families First Coronavirus Response Act (FFCRA). The guidance has provided answers to many pressing questions faced by employers as they prepare to implement the FFCRA’s requirements starting April 1, 2020, including how a “healthcare provider” is defined, whether furloughed employees are entitled to paid leave benefits, whether leave under the FFCRA may be taken intermittently, and the application of the small business exception. DOL’s guidance can be found here. Below is a summary of some of the most common FAQs.

When do the FFCRA’s requirements go into effect?

On April 1, 2020, and the FFCRA’s leave benefits are not retroactive. In other words, leave provided before April 1 will not count toward the FFCRA’s leave requirements.

Can an employee receive 12 weeks of expanded FMLA leave in addition to 12 weeks of regular FMLA leave?

No. An employee is still only eligible for a maximum of 12 weeks of FMLA leave (including expanded FMLA leave under the FFCRA) during the applicable 12-month period.

Can an employee take two weeks of Emergency Paid Sick Leave in addition to 12 weeks of FMLA leave?

Yes. An employee’s entitlement to Emergency Paid Sick Leave is not contingent upon an employee’s prior use of FMLA leave.

Will an employee’s use of paid leave benefits under the FFCRA count against the employee’s accrued PTO or sick leave bank provided by the employer’s policies?

No. Paid leave benefits under the FFCRA are in addition to any paid time off or sick leave provided by an employer’s policies; an applicable collective bargaining agreement; or applicable federal, state, or local laws.

Can an employer force an employee to use accrued PTO or sick leave to supplement an employee’s paid leave benefits under the FFCRA?

No. An employer may allow an employee to use accrued PTO or sick leave (if applicable) to supplement the amount the employee receives for Emergency Paid Sick Leave or expanded FMLA leave, up to the employee’s normal earnings. However, the employer is not entitled to a tax credit for any Emergency Paid Sick Leave or expanded FMLA leave that is not required to be paid or exceeds the limits set forth under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Is an employee on furlough entitled to paid leave benefits under the FFCRA?

No. Employees on furlough or discharged due to lack of work or business closure are not entitled to paid leave benefits under the FFCRA. This is true even if an employee is furloughed or discharged as a result of a government-imposed closure of the business due to COVID-19.

Are employees entitled to take expanded FMLA leave on an intermittent basis?

An employer may choose to allow employees to take expanded FMLA leave on an intermittent basis, but is not required to do so.

Are employees entitled to take Emergency Paid Sick Leave on an intermittent basis?

If an employee is teleworking, the employer may choose to allow employees to take Emergency Paid Sick Leave on an intermittent basis, but is not required to do so. Intermittent leave may be taken in any increment agreed upon by the employer and employee.

If an employee is working at a worksite, as opposed to teleworking, Emergency Paid Sick Leave cannot be taken intermittently if the leave is being taken for any of the following reasons:

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 healthcare 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 either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

On the other hand, Emergency Paid Sick Leave may be taken intermittently if agreed upon by the employer and employee when taken due tothe employee’s need to care for his/her child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19 related reasons.

May an employer force an employee to exhaust all Emergency Paid Sick Leave all at once?

No. For example, if a full-time employee only needs to take 40 hours of Emergency Paid Sick Leave in May 2020, then the remaining 40 hours may be used by the employee for any qualifying reason arising before December 31, 2020.

Who is a “healthcare provider” who may be excluded by their employer from paid leave benefits under the FFCRA?

The new FAQs indicate that a “healthcare provider” includes any person employed at any of the following:

1. Doctor’s office.
2. Hospital
3. Healthcare center.
4. Clinic.
5. Post-secondary educational institution offering healthcare instruction.
6. Medical school.
7. Local health department or agency.
8. Nursing facility.
9. Retirement facility.
10. Nursing home.
11. Home healthcare provider.
12. Any facility that performs laboratory or medical testing.
13. Pharmacy.
14. Any entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility.
15. 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.
16. Any individual determined to be a “healthcare provider” necessary for a state’s or territory’s response to COVID-19, as determined by the highest official of each such state or territory (including the District of Columbia).

Who is an “emergency responder” who may be excluded by their employer from paid leave benefits under the FFCRA?

An employee who is necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This definition includes, but is not limited to:

1. Military or national guard.
2. Law enforcement officers.
3. Correctional institution personnel.
4. Firefighters.
5. Emergency medical services personnel.
6. Physicians, nurses and public health personnel.
7. Emergency medical technicians.
8. Paramedics.
9. Emergency management personnel.
10. 911 operators.
11. Public works personnel.
12. 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.
13. Any individual determined to be an “emergency responder” necessary for a state’s or territory’s response to COVID-19, as determined by the highest official of each such state or territory (including the District of Columbia).

Are small businesses exempt from the FFCRA?

An employer with under 50 employees may be exempt from providing certain paid leave benefits under the FFCRA only if an authorized officer of the business has determined that at least one of the three conditions below is satisfied:

1. The provision of FFCRA paid leave benefits 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 employees requesting leave under the FFCRA would create a substantial risk to the financial health or operational capabilities of the small business because of the employee(s)’ specialized skills, knowledge of the business or responsibilities.
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 leave under the FFCRA, and these labor or services are needed for the small business to operate at a minimal capacity.

Note, however, that the small business exemption only excludes a small business from providing:

1. Emergency Paid Sick Leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons.
2. Expanded FMLA leave.

Small businesses are not exempt from providing Emergency Paid Sick Leave benefits related to the remaining qualifying reasons for which Emergency Paid Sick Leave may be taken, such as seeking a diagnosis of COVID-19, abiding by a quarantine or isolation order, caring for an individual with COVID-19, or experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

How do I know if my business is under the 500-employee threshold and therefore must provide benefits under the FFCRA?

The DOL states that employers should count all full-time and part-time employees working within any state of the United States, the District of Columbia, or any Territory or possession of the United States. Employees on leave, temporary employees and day laborers supplied by a temporary agency must also be considered. Independent contractors are not to be included.

According to the FAQs, a corporation (including its separate establishments and divisions) will typically be considered a single employer and its employees must each be counted. If one corporation has an ownership interest in another corporation, the two entities are separate employers unless they are considered joint employers under the FLSA. If the FLSA joint employment test is satisfied, the two corporations must aggregate their employees for purposes of determining whether they must provide Emergency Paid Sick Leave and expanded FMLA.

Also, the DOL has adopted the “integrated employer” test under the FMLA regulations for determining whether two entities are separate employers. According to the new FAQs, “integrated employers” are required to aggregate their employees for determining whether they must provide expanded FMLA and Emergency Paid Sick Leave. This is a change from the FAQs that the DOL previously issued that indicated that the “integrated employer” test would only be used to determine employer coverage for purposes of expanded FMLA.

We are closely monitoring all developments and will provide additional updates once subsequent regulations are put into place.