After many states, cities, and counties issued “safer-at-home”
orders directing all businesses not deemed “essential” to close for 14 days,
the Department of Labor (DOL) updated its preliminary guidance on the
implementation of the Families First Coronavirus Response Act (FFCRA),
accessible here.
An important takeaway from the updated guidance is that employers whose
businesses are subject to a government shutdown are not required to pay the
emergency sick leave or expanded family and medical leave, pursuant to the
FFCRA, to their employees.
Shutdown businesses not required to provide paid leave
The DOL suggested that if an employer “closes [its] worksite
for lack of business or because it is required to close pursuant to a federal, state,
or local directive” it is not required to pay its employees paid sick leave or
expanded family and medical leave. The DOL went on to state that these
employees “may be eligible for unemployment insurance benefits” and directed
employees to their state workforce agency or unemployment insurance office for
specific eligibility questions.
It does not matter whether the employer shut down before or
after the FFCRA’s effective date of April 1, 2020. However, if an employer
closes while an employee is on paid sick leave or expanded family and medical
leave, it “must pay for any paid sick leave or expanded family and medical
leave . . . used before the employer closed.”
The DOL further elaborated that this same guidance applies
if it is still open and furloughs certain employees because it does not have
enough work or business for them. Additionally, if an employer reduces its
employees’ work hours because it does not have work for them to perform, the
employer is not required to pay the emergency sick leave or expanded family and
medical leave for the hours the employee is no longer scheduled to work.
Clarification of the FMLA and the expanded FMLA
The DOL clarified that any paid leave taken pursuant to the
expanded Family and Medical Leave Act (FMLA) leave is dependent on how much
FMLA leave an employee has “already taken during the 12-month period that [his
or her] employer uses for FMLA leave.” Because expanded family and medical
leave is a type of FMLA leave, any expanded family and medical leave taken
counts against the employee’s entitlement to preexisting FMLA leave. For
example, if an employee who was eligible for preexisting FMLA leave took six
weeks of leave in January and February 2020 for the birth of a new child, he or
she is only entitled to up to six weeks of expanded family and medical leave.
Documentation confusion
The DOL instructed all employers to maintain detailed
documentation, including documents provided by its employees, about any emergency
paid sick leave or expanded FMLA taken by its employees in order to later prove
eligibility for tax credit reimbursement. This documentation should comport
with Internal Revenue Service (IRS) applicable forms, instructions and
information. To date, the IRS has yet to release any such certification forms.
Importantly, employers are “not required to provide leave if materials
sufficient to support the applicable tax credit have not been provided” by the
employees requesting leave.
If an employee takes expanded family and medical leave to
care for his or her child whose school or daycare is closed, or if a child care
provider is unavailable due to COVID-19 related reasons, the employee can be
required to provide additional documentation in support of this leave including,
for example, a notice that has been posted on a government, school, or daycare
website, published in a newspaper, or emailed from an official or employee of
the school, daycare, or child care provider.
Small business exemption clarification
As previously noted, employers with fewer than 50 employees
(small businesses) can seek an exemption from providing paid sick leave and
expanded family and medical leave due to the closure of a child’s school or
place of care when doing so would jeopardize the viability of the small
business. Now the DOL has clarified this exemption by stating that a small
business may claim this exemption if an authorized officer of the business has
determined that one of the following three situations applies:
- 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;
- 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
- 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.
The DOL has not further elaborated on how an employer can
document this requested claim for an exemption. However, given the frequent
updates coming through almost daily, it is anticipated that further guidance on
this will be forthcoming.
Intermittent leave
Employees may be able to take expanded family and medical
leave and emergency paid sick leave intermittently while teleworking, if the
employer agrees. If an employee is prevented from teleworking, or unable to
telework their normal schedule of hours due to one of the qualifying reasons in
the paid sick leave act or because of the need to care for a child whose school
or place of care is closed, or their child care provider is unavailable because
of COVID-19 related issues, an employer may allow the employee to take expanded
family and medical leave or emergency paid sick leave intermittently while
teleworking. Intermittent leave can be taken in increments throughout the day,
provided that the employer and employee agree upon the increments. The DOL
“encourages employers and employees to collaborate to achieve flexibility and
meet mutual needs, and the [DOL] is supportive of such voluntary arrangements
that combine telework and intermittent leave.”
However, intermittent leave for workers able to work at a
job site is different and depends on the reason the employee is taking the
leave, and again whether the employer agrees. Paid sick leave for employees who
are in non-telework situations must take their leave in full-day increments. An
employee who works at a job site may not take intermittent leave if the leave
is being taken for one of the following reasons:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- the employee 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
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Once an employee begins receiving paid sick leave for one or
more of the qualifying reasons above, he or she must continue to take paid sick
leave each day until (1) the full amount of paid sick leave has been used or
(2) he or she no longer has a qualifying reason for taking paid sick leave. To
permit an employee to take intermittent paid sick leave and continue to come to
work when one of the above qualifying reasons applies contradicts the purpose
of the FFCRA, given its intent is to prevent the further spreading of the virus.
Therefore, it is only permissible for an employee to take
intermittent paid sick leave or expanded FMLA so long as it is to care for a
child whose school or place of care is closed, or their child care provider is
unavailable because of COVID-19 related issues, given the employer agrees.
Going forward
While much confusion remains, and will continue to remain in
the near future, the DOL will need to continue to provide further clarity on these
and other issues impacting employers and employees in light of the FFCRA. Still,
employers and employees should expect further revisions and guidance as the DOL
begins the process of implementing this new and federally unprecedented law.
Fortunately, the DOL has stated that there is a temporary
non-enforcement period and it will not bring enforcement actions against any
employer for violations of the act occurring within 30 days of the enactment of
the FFCRA, i.e. March 18 through April 17, 2020. This wise grant of a hiatus
period should help employers review, refine, and fine-tune their FFCRA policies
going forward, while continued guidance from the DOL is still forthcoming. However,
employers should still be prepared to implement the statute and comply with the
statute when it goes into effect April 1, 2020.
Employers with additional questions about any of the topics
discussed in this article or any other issues regarding the requirements and
implementation of the FFCRA should contact experienced legal counsel who is
knowledgeable in these areas.
R. Eddie Wayland is a partner with the law firm of King
& Ballow. You may reach Mr. Wayland
at (615) 726-5430 or at rew@kingballow.com. Mr. Wayland gratefully acknowledges
Hunter Yoches, Kristin Titley, Darius Walker, and Rachael Rustmann (K&B’s
task force for COVID-19 related issues) for their ongoing assistance in
monitoring and updating this evolving situation and circumstances.
The foregoing materials, discussion and comments have
been abridged from laws, court decisions, and administrative rulings and should
not be construed as legal advice on specific situations or subjects.
