The DOL Issues Guidance on 5 Key FFCRA Questions for Employers

E-mployment Alert

The Department of Labor issued additional guidance for employers this past week on the Families First Coronavirus Response Act (FFCRA), which addresses a number of questions we’ve been fielding from clients.

1. Who is a “son” or “daughter” for Paid Sick Leave (PSL) and Expanded FMLA (EFMLA) purposes?

A son or daughter includes the following:

  • Your own biological, adopted, or foster child;
  • Your stepchild, legal ward, or a child for whom you stand in loco parentis; and
  • An adult (over age 18) son or daughter who has a mental disability and is incapable of self-care.

2. Do I have to return my employees from leave to the same position they held before the leave?

Generally, yes, you do. The employee must be returned to the same or a substantially equivalent job. On the other hand, if an employment action – such as a layoff – occurs during the leave and would have affected the employee whether they were still at work or laid off, then they have no reinstatement rights. In addition, if the employer has fewer than 25 employees and the employee took leave to care for a son or daughter due to a school or childcare unavailability, the employer may refuse to return the employee if four hardship criteria enumerated in the Guidance exist.

3. Is EFMLA leave in addition to regular FMLA leave?

First, you should separately distinguish EFMLA from FFCRA Paid Sick Leave. Eligible employees are entitled to Paid Sick Leave no matter how many FMLA days they have taken.

An employee’s eligibility for EFMLA leave depends on how much FMLA leave they have taken in the preceding calendar year (as the calendar is used and defined by your FMLA policy). An employee may take a total of 12 weeks of FMLA and EFMLA leave during a 12-month period. So, if an employee has already used all 12 weeks of FMLA leave during the year, they may not take additional EFMLA leave. For example, if an employee took 4 weeks of FMLA leave last January, they would only have 8 additional weeks of FMLA or EMFLA leave to take in the year. By the same token, if an employee took some EFMLA leave prior to December 31, they could take the remainder of their 12-week allotment for regular FMLA leave within the year.

There is one important exception. Paid Sick Leave is not a form of FMLA leave, so it does not count toward the 12 weeks of leave. However, if an employee takes Paid Sick Leave during the first two weeks of EFMLA leave, which otherwise would be unpaid, then those 2 weeks count toward the employee’s 12-week FMLA/EFMLA allotment.

4. Who is a “health care provider” for purposes of self-quarantine and Paid Sick Leave?

A health care provider that can advise employees to self-quarantine is a licensed doctor of medicine, a nurse practitioner, or any other health care provider who is permitted to issue an FMLA certification.

5. When and to what extent may a “small business” be exempt from the FFCRA?

An employer – including religious organizations and non-profits – with fewer than 50 employees may be exempt (a) from the part of the Paid Sick Leave and EFMLA provisions regarding school or place of care closures or childcare provider unavailability, and (b) when complying with those two provisions would “jeopardize the viability of the small business as a going concern.” Note that the exemption does not apply to the other five paid-leave portions of the Paid Sick Leave law.

An exemption may be claimed when:

  • the business employs fewer than 50 employees; and
  • the leave that is requested is for school, place of care, or childcare unavailability; and
  • an authorized officer has determined that at least one of the following three conditions is satisfied:
  1. Providing the paid sick leave would cause the company’s expenses and financial obligations to exceed revenues and cause the business to “cease operating at a minimal capacity;” or
  2. The absence of the employees on leave would present a substantial risk to the business’ financial health or operational capabilities because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are insufficient workers who are qualified, willing, and able, and who will be available at the needed time and place, to perform the work or services provided by the employees on leave, and that work or those services are necessary for the business to operate at a minimal capacity.

As always, we’ll continue to provide updates and practical advice when new guidance is announced.