Revised March 30, 2020

The U.S. Department of Labor (DOL) just released significant FAQs that provide further guidance to employers interpreting and preparing to implement emergency paid sick and paid family leave under the Families First Coronavirus Response Act (FFCRA), which goes into effect on April 1, 2020. An updated summary of the key highlights of these new FAQs is outlined below.

Employers Must Provide FFCRA Benefits in Addition to Existing Leave Policies

• If an employee is eligible to take emergency paid sick or paid family leave under the FFCRA, that leave must be provided in addition to leave provided under an employer’s existing leave/paid time off policies.
• If an employee is eligible for both FFCRA benefits, as well as paid leave under an employer’s existing policy, an employee must choose between the existing paid leave (i.e. standard, PTO, vacation or sick leave), or paid sick and family leave under the FFCRA, unless the employer decides to allow those leaves to run concurrently. In other words, an employee cannot take leave under the FFCRA (which has a cap on maximum daily wages) and supplement that leave with paid time off under existing policies in order to reach their full daily pay rate, except for where the employer expressly permits employees to do.

Employees Are Not Entitled to FFCRA Benefits Following Furlough/Closed Worksite

• If an employer places employees on furlough status due to lack of work, those employees are not entitled to paid sick or paid family leave under the FFCRA.
• Similarly, if an employer has closed its worksite due to lack of business or because of a federal, state or local government directive, employees who are unable to work as a result of the closure will not be entitled to receive paid sick or paid family leave under the FFCRA once the worksite has closed. This rule applies even if the closure occurs after April 1, 2020, and even if the employee has already requested leave prior to the closure. Employees may instead be eligible for unemployment benefits at that time.  

Intermittent Leave Is Permitted for Certain Types of Paid Sick and Family Leave

• If an employee is unable to telework according to their normal schedule due to a qualified reason under the FFCRA, the employer and employee may mutually agree to permit the employee to take paid sick leave or paid family leave intermittently while teleworking. For example, if an employee is teleworking, but cannot work a full schedule because the employee needs to care for a child due to school or childcare closure related to COVID-19, the employer can agree to let the employee take intermittent leave to address their protected childcare needs.
• Employees who are still reporting in-person to a worksite may take paid sick leave in full day increments, including intermittent leave, however intermittent leave cannot be taken if the employee: (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) 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 health care provider to self-quarantine due to concerns related to COVID-19; or (5) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Employee Documentation Required Under the FFCRA

• Employers who are eligible for and intend to claim a tax credit under the FFCRA for payment of their employees’ sick leave or expanded family and medical leave wages should retain appropriate documentation of such leave.
• The DOL now advised employers to consult with the IRS for applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, and any documentation substantiating the need for leave should be retained to support the credit.
• If an employee takes expanded family and medical leave to care for his or her child due to COVID-19-related issues covered by the FFCRA, employers may require employees to provide additional documentation to support the leave such as 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.
• Employees otherwise seeking leave beyond the two weeks of emergency paid sick leave due to their own COVID-19-related serious health condition, or the serious health condition of an employee’s family member, should continue to follow standard FMLA protocol, such as completing the requisite medical certification with the appropriate health care provider.

Exemptions for Small Businesses, Health Care Providers and Emergency Responders

• Employers with less than 50 employees may be exempt from providing paid sick and expanded family and medical leave under the FFCRA when doing so would jeopardize the viability of the small business as a going concern. The DOL’s new FAQs state that 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.

• Health care providers may also be exempt from paid sick and family leave benefits by their employer according to the FFCRA. The DOL has clarified that the term “health care provider” includes a licensed doctor of medicine, nurse practitioner, or 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.
• Emergency Responders who may be excluded by their employer from paid sick and family leave under the FFCRA include workers whose positions are 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 category includes, but is not limited to, military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services 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.

Notices/Poster to Employees About New Benefits

• The DOL has released posters for covered employers (including private sector and federal employers) to provide to employees regarding what paid sick and paid family benefits they may be entitled to receive under the FFCRA.
• According to the DOL FAQs on notice requirements, each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

We will continue to monitor and provide updates as new information about mandatory employee benefits becomes available from the DOL and related government entities.