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What Employers Need to Know About New DOL Regulations for the FFCRA

The recent set of regulations issued this week by the Department of Labor on the Families First Coronavirus Response Act had several highlights important to employers:

Documentation

  1. Employees taking Paid Sick Leave must be required to provide the following documentation to support the leave: (a) documentation of the qualifying reason for the leave, (b) a statement that the employee is unable to work, including telework, for that reason, and (c) the dates for which leave is required.
    • In the case of isolation or quarantine, employers must obtain documentation of the source of any quarantine or isolation order or the name of the health care provider that ordered or advised the self-quarantine.
  2. For employees taking Expanded FMLA Leave, employers must obtain appropriate documentation for the leave, such as a written notice (e.g., newspaper, email, letter, etc.) or website notice, of the closing by a government, school, day care or child care provider.
  3. If the employee chooses to take FFRCA Paid Sick Leave concurrently with the first two weeks of unpaid Extended FMLA leave, the employer will need to obtain the supporting documentation for both types of leave.
  4. Employers should retain this documentation to support a tax credit claim under FFCRA.
  5. If your employee takes traditional FMLA leave – for example, if the COVID-19 medical condition rises to the level of a serious health condition that justifies normal FMLA leave, you should require the customary FMLA documentation, such as medical certifications.

Incremental + Double Pay

  1. For Paid Sick Leave, unless the employee is teleworking (for which there are different rules), Paid Sick Leave for the six qualifying reasons must be taken in full day increments. The paid leave is to be taken until the employee exhausts the ten days of paid leave, or until the qualifying reason for the leave no longer exists, whichever is shorter. If the qualifying reason for the leave dissipates before the ten days, the employee may use the remainder of the sick pay if they develop another FFCRA qualifying reason by the end of the year.
  2. For Extended FMLA leave and pay, a non-teleworking employee can take leave intermittently, but only with the employer’s agreement (for example, if an employee is at home because their child’s school is closed, you could allow the employee to work two days a week and take paid FMLA leave for the other three days a week).
  3. If an employer has pre-existing leave or pay policies or programs, such as PTO, an employee who is eligible for FFCRA sick leave or extended FMLA leave pay must choose one or the other, but not both, for pay - unless the employer agrees otherwise to allow the employee to use the employer’s benefits to supplement the FFCRA amounts, up to the employee’s normal earnings. This could occur, for example, where an employee’s FFCRA benefits are subject to the caps in the Act, or the employee receives 2/3 pay for extended FMLA leave, and the employer permits them to supplement that with PTO to receive the full normal earnings for the hours.
  4. Paid Sick Leave and Extended FMLA leave under the FFCRA is in addition to any pre-existing leave and pay entitlements. The employee may choose to supplement FFCRA pay with existing time off or pay benefits, up to the level of their normal earnings. However, an employer may not require an employee to supplement or adjust any pay mandated under the FFCRA.
  5. An employer is permitted to pay employees in excess of the FFCRA requirements, but you may not claim or receive a tax credit for anything above the FFCRA benefits.

Layoff + Closures

  1. If an employer closes the workplace due to lack of business or due to the Governor’s Order, and regardless of whether the closure was before or after the April 1 effective date of the Act, an employee is not eligible for Paid Sick Leave or Extended FMLA leave. They may, however, be eligible for unemployment benefits. If an employee was eligible to receive Paid Sick Leave prior to the closure, they are to receive the pay until the date of closure. After that date they are no longer entitled to paid sick leave or extended FMLA benefits.
  2. If the employer’s business stays open, but some employees are laid off or furloughed, those employees are not entitled to take Paid Sick Leave or Extended FMLA leave.
  3. If an employer reduces an employee’s scheduled work hours because of lack of work, an employee may not take Paid Sick Leave or extended FMLA leave for the hours they are no longer scheduled to work. The reason is because the employee is not prevented from working full scheduled hours due to a COVID-19 qualifying reason, even if the reduced hours can somehow be traced back to or attributed to a COVID-19 reason.

However, if the employee is unable to work their full schedule due to a COVID-19 qualifying reason, rather than a business-related reduction of hours, they may take paid sick leave or extended FMLA for the reduced hours.

Health Insurance

  1. Extended FMLA Leave – An employee is entitled to continued group health care coverage during Expanded FMLA leave on the same terms as if they continued to work.
  2. Paid Sick Leave – The employer must continue health care coverage during Paid Sick Leave (apparently, this is a HIPAA requirement).

Our employment lawyers expect clarifications and guidance to continue to come in from government agencies regarding all the legislation affecting employers during the pandemic. We will continue to provide these updates when they’re available.

 
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