COVID-19: The FFCRA – Moving from Understanding to Implementation

As more time passes since the signing of the Family First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) has released more information regarding how employers should administer and implement the aspects of the act that applies to Emergency Paid Sick Leave (EPSL) and the expanded Family and Medical Leave Act (FMLA). In this guidance, we will provide clarification around some of the more commonly asked questions that have surfaced about how to actually implement these new mandated benefits. This guidance is for informational purposes and should not replace guidance from legal counsel.

Here are some good questions and answers to help you understand the Act in more detail.

1) “I trust my employees, however am I allowed to request justification when an employee request leave under either the EPSL or the FMLA?”

The Act allows employers to request documentation to justify leave requests for both EPSL and the expanded FMLA. In fact, the Act specifies that employees are obligated to provide the necessary documentation, including items such as quarantine or isolation orders and written documentation from a health care provider requesting or requiring self-quarantine.

For leave requested due to childcare issues, supporting documentation could include an official announcement from the state or local government, or the childcare facility. In cases where such notices are not published, an email from an official of the school or childcare provider would be sufficient. Employers should maintain these records to help support their request for tax credit reimbursement.

2) “Since the FFCRA is based on existing FMLA regulations, can expanded FMLA leave be taken on an intermittent basis?”

The Act does not specifically require that employers allow employees to take their expanded FMLA, or EPSL leave intermittently, however it does allow the employer and employee to agree on incremental use. As with many things, the guidance from the DOL does get complicated.

For employees who telework, an agreement can be reached on intermittent use for any of the reasons covered by the Act. For employees who continue to work on the employer’s premises, “intermittent leave is permitted for employees who are taking leave for school closures or childcare unavailability”.

Leave taken for any of the remaining reasons, must be taken in full-day increments. In a way, this makes sense. The other reasons for leave deal with quarantine or diagnosis, and it seems justified that the DOL wishes to take precautions to limit the spread of the virus.

3) “How is paid leave under the FFCRA affected if the worksite closes?”

Prior to the release of this new guidance, it was generally accepted that employees who are laid off or furloughed, would not be eligible for paid time off. The DOL has expanded this understanding to include instances when:

1. the closing happens before or after the law take effect,
2. an employee is actively taking leave when the closure occurs,
3. an employee is furloughed, or
4. the employer closes the workplace and says it will open at some point in the future.

The DOL goes further by stating “If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business, or because it is required to close pursuant to a Federal, State or local directive.”

4) “How does an employer calculate the number of hours an employee is eligible for?”

The Act is very clear that employees are eligible for 80 hours of EPSL and an additional 10 weeks of paid EFMLA leave under qualifying circumstances. The new guidance does specify that leave can only be claimed for an employee’s scheduled hours.

For employees with variable work hours, the guidance suggest that the employer calculate the normal scheduled work hours over a period of six months, or back to the employee’s hire date if the employee has not been employed for at least six months.

5) “How are healthcare and other benefits administered during leaves?”

The Act borrows from the FMLA’s group health coverage continuation provisions. These provisions include:

1. if an employee has family coverage, they must maintain such coverage, and
2. the employee must continue their regular contributions towards the premiums.

The Act also relies on limitations contained in the federal Health Insurance Portability and Accountability Act (HIPPA) and prohibits employers form establishing different terms of coverage (such as eligibility and contribution rates) based on an employee’s work status.

6) “Can employees use existing employer provided leave benefits to supplement the leave provided under the FFCRA?”

Yes, the Act allows for use of existing leave benefits as a supplement to FFCRA leave that is paid at two-thirds of an employee’s regular rate of pay. The use of existing employer provided leave in this manner must be agreed on by both the employer and the employee. While this arrangement is authorized by the Act, the DOL reminds employer that when they claim available tax credits, they are limited to the expense associated with the FFCRA leave. The employer benefits used to “top up” the FFCRA leave is unavailable for tax credits.

7) “Have the posting requirements of the Act been published?”

Yes. On March 26, 2020 the DOL published a recommended posting that can be used to comply with the posting requirements of the Act. A copy of this posting can be found on the DOL website. In addition, further guidance has been published that stipulates:

1. the poster must be posted in a conspicuous place on the premises
2. posting requirements may be satisfied by emailing or direct mailing this notice to employees
3. employers may also post this notice to the company’s internal or external website
4. the poster does not need to be translated into another language
5. employers are not required to provide the required notice to former employees or pending applicants.

While not addressed in the guidance, it is also advisable for employers to provide notice to any new employee who may be hired between April 1 and December 31 of 2020.

8) “I am considering requesting an exception to the FFCRA, has the DOL issues any new guidance as to how this process will work?”

The Department of Labor (DOL) has released some guidance recently on the circumstances under which a small employer may claim exempt status. According to the guidance, an exception to the Act is available if an authorized officer of the business has determined that:

1. The provision of sick leave or expanded medical family 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.

It appears from the guidance that there will not be an application or approval process administered by the DOL. The exempt status will be “self-claimed” and the decision made by the small business will be recognized only if the:

• Employer has fewer than 50 employees
• Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable, due to COVID -19 related reasons, and
• An authorized officer of the business has determined that at least one of the three conditions described above is satisfied.

It should also be noted that the guidance also provides employees with resources to assist them if they feel their employer has improperly claimed an exception or has refused to allow them access to their rights under the FFCRA. Accordingly, it is important for employers who choose to claim the small business exemption, to carefully document their reasons for the exemption and to communicate your decision to your employees.

9) “If my employer was subject to the FMLA prior to the passage of the FFCRA, and I have taken FMLA leave earlier in my 12- month cycle, am I still eligible for the 12 weeks of leave provided for under the FFCRA?”

No. If your employer was subject to the mandates of the FMLA prior to April 1, 2020, you are entitled to a total of 12 weeks of FMLA leave. If you have used a portion of your entitled leave prior to the enactment of the FFCRA, you will only be eligible for the remainder of your 12 -week total. For example, if in December of 2019 you used 5 weeks of FMLA leave to recover from a personal surgery, you will only be eligible for an additional 7 weeks of emergency FMLA under the FFCRA.

In short, since the expanded FMLA provisions of the FFCRA are a form of FMLA leave, the total of 12 – weeks within a 12 – month period still applies. Finally, you remain eligible for EPSL regardless of how much leave you have taken under the FMLA.

10) “The FMLA has a rather narrow definition of “health care provider”. Does the FFCRA apply the exact same standard when determine who may be excluded from paid sick leave and/or expanded family and medical leave?”

Recent guidance has provided clarification on this question. This guidance indicates a much broader definition of “health care provider”. According to the DOL a “health care provider” is “ anyone employed at a 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.”

“This definition 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 an 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.”

As you can see, this is an expansive definition of the term “health care provider” and is intended to cover anyone who plays a role in controlling the spread of the virus. In fact, the act states that the “Department encourages employers to be judicious when using this definition”. It is sure that there will be questions and challenges to this definition since it can potentially include individuals who would otherwise not consider themselves “health care workers”.

The passage of the Family First Coronavirus Response Act is a very recent development and it is important to continue to monitor new developments as they become available. Due to the rapidly changing regulations and program specifics, some items in this post may have changed since the publication date.  If you have questions, please don’t hesitate to contact us at HumanCapital@fahrenheitadvisors.com.

About the Author

Nathan Duet is an accomplished Human Resources professional with over 34 years of experience with specific concentration in building sustainable human resources functions within rapidly growing organizations, as well as making strategic adjustments to policies and practices to accommodate the organization’s strategy and development. He is a collaborative leader that effectively utilizes the talents and contributions of team members to build a balanced approach to human resources management that facilitates the growth of, and respect for, individuals while positioning the organization to reach and exceed objectives. Nathan’s work has encompassed all areas of Human Resources Management, including Employee Relations, Compensation, Benefits, Compliance with State and Federal labor laws, Communications, and Performance Management.