Yesterday, the DOL published a temporary rule on the Families First Coronavirus Response Act (FFCRA) and also revised their previous guidance provided in the Fact Sheet, Families First Coronavirus Response Act: Questions and Answers. The temporary rule and revised guidance provide some additional information to employers on how to implement FFCRA paid leave, but it also changes some previous guidance.
So, as you make plans and decisions, make sure to review the most current information available from the DOL. Also, because the DOL is updating its information without providing any notice of the changes, we would advise that you print out or electronically save a copy of the DOL guidance on which you are relying each time; make sure that your copy is dated and time-stamped.
We are still working our way through the 124 page DOL temporary rule and will update you as soon as we have more information, but wanted to provide a few highlights so far:
Government Stay-at-Home or Shelter-In-Place Orders. The temporary rule states that if an employee is unable to work because they are subject to a government stay-at-home or shelter-in-place order, they could qualify for up to two weeks of paid sick leave at their regular rate of pay. However, to be eligible for paid sick leave, their employer must have work for the employees to perform. Specifically, the temporary rule states: “An Employee Subject to a Quarantine or Isolation Order may not take Paid Sick Leave where the Employer does not have work for the Employee as a result of the order or other circumstances.”
Caring for a Son or Daughter. Employees are eligible for paid leave under FFCRA if they are unable to work because they need to care for their son or daughter whose school or “Place of Care” has been closed or is unavailable due to COVID-19; however, employees are only eligible for this paid leave “if no other suitable person is available to care for the Son or Daughter during the period of such leave.” Additionally, to be eligible for paid leave, their employer must have work for the employees to perform. Place of Care is defined in the rule as “a physical location in which care if provided for the Employee’s child while the Employee works for the Employer…include[s] day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.”
Use of PTO or Vacation During Expanded FMLA. The DOL guidance now provides that for the first two (2) weeks of expanded FMLA leave to care for a son or daughter (as described above), employees must choose whether to use any employer-provided accrued PTO or vacation or to use the paid sick leave under the FFCRA at 2/3rds pay. Employers can offer to allow employees to supplement their 2/3rds pay with accrued PTO or vacation up to the employee’s normal earnings during this two-week period. After the first two weeks, employees may elect and/or employers may require that employees use any remaining expanded family and medical leave (up to 10 weeks) at the same time as any employer-provided accrued PTO or vacation that would be available under the employer’s policies. In other words, during the final 10 weeks of leave, you can require that employees use any accrued PTO and vacation time concurrently.
- IN CONTRAST: The DOL states that employers cannot require employees to use employer-provided accrued PTO, vacation or sick leave at the same time as any other paid sick leave required under the FFCRA unless the employee agrees. So, without employee-approval, employer-sponsored leave cannot run concurrently with FFCRA paid leave if an 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 related to COVID-19, (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis, (4) is caring for an individual subject to an order described in (1) or self-quarantine as described in (2), or (6) is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services. Employers can offer to allow employees to supplement their FFCRA paid sick leave with accrued PTO, vacation or sick time up to the employee’s normal earnings. However, employers “are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA”.
Electing the Small Business Exemption. The temporary rule states that to elect the exemption for employers with less than 50 employees, “the Employer must document that a determination has been made pursuant to the criteria set forth by the Department…and retain the records in its files.” These criteria are outlined in our previous blog post here.
- AS A REMINDER: The small business exemption does not apply to all paid leave required by the FFCRA. It only applies to the 12 weeks of paid sick leave and expanded FMLA paid at 2/3 because the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.
Finally, I am speaking at a webinar that has just been scheduled for this afternoon (4/2/20) at 4:00pm: What Businesses Need to Know About the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the Families First Coronavirus Response Act. To register, please email Jill Denbow at JDenbow@schneiderlawgroup.com.
For additional questions, please contact us or schedule a consultation.