Additional Guidance from DOL on FFCRA – including rules for small employer exemption and definitions of “health care provider” and “emergency responder”

Over the weekend, the Department of Labor (DOL) issued its latest round of guidance on the FFCRA’s Emergency Paid Sick Leave (EPSL) and Expanded FMLA (E-FMLA) requirements. The additional guidance is found in Questions #38-59 of DOL’s running Q&A document. Below are the highlights. You can find our initial write-up of the FFCRA, and our summaries of the DOL’s first and second guidances, here.

The FFCRA referred to a small business exemption for employers with fewer than 50 employees. Do we have any more information?

Finally we do! The DOL has confirmed that employers with fewer than 50 employees may be exempt from having to provide E-FMLA and EPSL Category #5 (leave to care for a child due to the school or childcare provider being closed/unavailable due to COVID-19). Note that this exemption only applies to E-FMLA and EPSL due to school/childcare closure – not to other types of EPSL.

In order to claim exemption from providing E-FMLA or EPSL Category #5, an authorized officer of a business with fewer than 50 employees must have determined that one of the following is true:

    1. Providing EPSL or E-FMLA would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
    2. The absence of the employee(s) requesting EPSL or E-FMLA would entail a substantial risk to the financial health or operational capabilities of the 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(s) requesting EPSL or E-FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

We strongly recommend that the company maintain both the records and information on which the officer’s determination is based and a written record of the officer’s determination.

 

Can an employee take EPSL or E-FMLA to care for any child whose school or childcare is closed?

The FFCRA only provides leave to care for a “son or daughter” whose school or child care is closed or unavailable – not any child. The DOL has now clarified that “son or daughter” includes any “biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child.” So the key is that the child is that employee’s responsibility – EPSL is not available where the employee wants to care for someone else’s child.

 

If an employee used FMLA earlier in the year, does that impact EPSL and E-FMLA?

The DOL has clarified that E-FMLA counts toward the total 12 weeks contemplated under the FMLA. So, if an employee has taken FMLA within the last 12-months, their total regular FMLA and E-FMLA can’t exceed 12 weeks. Similarly, an employee who takes E-FMLA, will have that time counted against their annual FMLA entitlement.

 

What is a full-time employee for purposes of EPSL? What is a part-time employee?

For purposes of EPSL, a full-time employee is one who is normally scheduled to work 40 hours or more per week. A part-time employee is one normally scheduled to work fewer than 40 hours. This matters for EPSL, because it determines how many hours of EPSL the employee is eligible to receive.

 

Who is a “health care provider” for purposes of determining which employees can be denied EPSL/E-FMLA?

The FFCRA provides that employers can refuse EPSL and E-FMLA for “health care providers.” The DOL has now clarified that a health care provider is very broad. It includes anyone employed at any 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.

“Health care provider” also includes anyone employed by an entity that contracts with any of these health care institutions to provide service or to maintain the operation of the facility. The DOL states that this 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” and anyone that the highest official of a state or territory (generally, a governor) determines is a health care provider necessary for that state or territory’s response to COVID-19.

However, the DOL encourages employers to be judicious with their reliance on the “health care provider” exemption in order to minimize the spread of COVID-19.

 

Who is an “emergency responder” for purposes of determining which employees can be denied EPSL/E-FMLA?

The DOL has also defined “emergency responders” very broadly, stating that it is an employee who is necessary for the provision of transport, care, health care, comfort and nutrition, or whose services are otherwise needed to limit the spread of COVID-19. The DOL states that this includes, but is not limited to, “military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.” In addition, anyone that the highest official of a state or territory (generally, a governor) determines is an emergency responder necessary for that state or territory’s response to COVID-19 is deemed to be an emergency responder.

However, the DOL encourages employers to be judicious with their reliance on the “emergency responder” exemption in order to minimize the spread of COVID-19.

 

Is my company required to return an employee to the same position after his or her leave?

The DOL says yes – in most circumstances. Employers can’t take an adverse employment action (firing, disciplining, etc.) against an employee for taking EPSL or E-FMLA. However, employees aren’t protected from employment action that would have impacted them regardless of their being on leave – such as layoffs or furloughs.

Employers with fewer than 25 employees also have some specific provisions that apply to an employee returning from E-FMLA. If your company is in that position, refer to Question #43 in the Q&A or contact your employment lawyer to discuss.

DOL Provides Additional Guidance on Families First Leave Provisions, Including Treatment of Employees on Furlough and Handling of Intermittent Leave

More Guidance from DOL on Paid Sick Leave and Emergency FMLA

Late Thursday the Department of Labor (DOL) issued more guidance for employers on the Families First Coronavirus Relief Act (FFCRA) emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (E-FMLA) requirements. The additional guidance is in the form of 22 new Q&As (#15-37 in the Guidance, which you can find here).

The guidance finally answered several important questions that had left employers confused by their obligations, including how to handle furloughed employees and whether intermittent leave is available to care for a child who is home from school or childcare because of a COVID-19-related closure.

Here are the key questions and answers from this new guidance:

What are the records the employee must provide and the employer must keep?

To be eligible for the tax credit, employers must require, and employees must provide, appropriate documentation in support of the reason for the leave. The documentation should include the employee’s name, the qualifying reason for the leave, a statement that the employee is unable to work (or telework) for that reason, and the dates for which they require the leave. While it appears that the employee’s own declaration will satisfy part of the requirement, the employee must provide documentation supporting the reason for the leave. Examples of such documentation are a copy of the Federal, State, or local quarantine or isolation order related to COVID-19, written documentation by a health care provider advising self-quarantine, or the notice demonstrating the closure of a school or place of care.

The DOL Guidance makes clear that this documentation must be retained by the employer to support the tax credit.

May EPSL and E-FMLA be taken intermittently?

Employees who are working at their usual worksite may use EPSL and E-FMLA intermittently only if the reason they are taking the leave is to care for a child whose school or childcare is closed or unavailable (Category #5) and the employer agrees. The DOL encourages employers and employees to collaborate to achieve flexibility in this area.

Employees who are teleworking may take EPSL and E-FMLA intermittently with the employer’s agreement, in whatever increments the employee and employer agree to. The DOL encourages employers and employees to collaborate to find ways to allow for a combination of telework and intermittent leave.

What happens if I close a worksite? Are employees eligible for EPSL/E-FMLA?

In general, employees are not eligible for EPSL or E-FMLA during the period when a worksite is closed. This is true even if the worksite closes on or after April 1, 2020 and even if an employee already has begun EPSL or E-FMLA leave. In this situation, the employee would receive EPSL or E-FMLA only for the period from April 1 to the date of the closure.

Are furloughed employees eligible for EPSL/E-FMLA?

No. If the employer implements a furlough because it does not have enough work or business, then the impacted employees are not eligible for EPSL/E-FMLA. Note that this remains the case even if the employer indicates that they plan to reopen.

Employees who are furloughed should apply for unemployment benefits.

If an employer reduces an employee’s hours, can employees use EPSL or E-FMLA to make up the difference?

No.

May I require employees to use other available paid leave (vacation time, PTO, etc.) to supplement the EPSL/E-FMLA pay? May I allow them to?

Employers may not require employees to use paid leave to “top off” their EPSL/E-FMLA pay, but may allow it if the employee wishes to do so.

What if I want to pay an employee their full pay during EPSL or E-FMLA even though they only receive 2/3 pay under the FFCRA?

Employers can choose to pay more, but they will not receive a tax credit for the excess payments.

When is an employee able to telework for purposes of the FFCRA?

An employee is able to telework (and thus ineligible for EPSL and E-FMLA) if the employer permits or allows them to perform work at home or a location other than their regular workplace and pays them their normal wages for such work.

When is an employee unable to work or telework?

An employee is unable to work or telework, and thus potentially eligible for EPSL, if the employer has work for them and one of the EPSL qualifying reasons keeps them from being able to perform that work (either at their worksite or via telework).

Do state and local “stay at home” and “shelter in place” orders constitute “quarantine or isolation” orders so as to satisfy Category #1 for EPSL?

The guidance doesn’t specifically address whether the current broad government orders to “stay at home” or “shelter in place” constitute a “quarantine or isolation order” as is required to fall under Category #1 for purposes of EPSL. However, language in one of the questions regarding workplace closures further supports what we already thought – namely that these orders do not meet the requirements for Category #1.

 

 

New Guidance on Families First Coronavirus Response Act – INCLUDING DESIGNATION OF APRIL 1st EFFECTIVE DATE

Since President Trump signed the Families First Coronavirus Response Act (FFCRA) on March 18th (see our summary of the FFCRA’s key employment provisions here), we’ve received two pieces of additional guidance – one relating to how the FFCRA’s emergency paid sick leave (EPSL) and emergency FMLA provisions (E-FMLA) will be interpreted and one relating to how businesses can take advantage of the dollar-for-dollar tax credit for payments of EPSL and E-FMLA.

Here are the key questions and answers coming out of each of those updates. In addition, at the end, we’ve highlighted a number of open issues and questions that remain unclear:

DOL Guidance on EPSL & E-FMLA

When does my business have to comply?

The Act is effective on April 1, 2020. This means that all covered employers (those with fewer than 500 employees) have to start providing these new types of leave on April 1st. There is a narrow exception that applies to employees who are health care providers or emergency responders, but otherwise, all businesses with fewer than 500 employees are required to comply by 4/1.

Are there any special provisions for my small business?

If your business has less than 50 employees and providing childcare-related EPSL and E-FMLA would jeopardize the viability of your business, your business may be eligible for the small business exemption. The DOL is preparing regulations to address the criteria for this exemption.  In the meantime, the DOL has advised that you maintain records showing the business impact of these requirements.

How do I determine whether my business has fewer than 500 employees?

The number of employees is counted at the time the employee’s leave is to be taken, including full-time and part-time employees, temporary employees, day laborers, and joint employees (regardless of whether the joint employees are maintain on your payroll) employed in the United States, including any employees on leave. Independent contractors are not considered employees for this purpose.

We understand that this creates a difficult framework for employers that are close to the 500-employee mark, but you will need to reassess if your company has at least 500 employees on a daily basis.

Are related businesses added together to determine whether the Company has 500 employees?

The DOL’s guidance says that, typically, a corporation (including its separate establishments and divisions) is considered to be a single employer, with all of its employees to be counted toward the 500-employee threshold.

Where a company has an ownership interest in another company, the question is whether they are joint employers under the Fair Labor Standards Act and/or integrated employers under the FMLA’s integrated employer test. If the companies are joint employers under the FLSA, then their employees are added together for purposes of EPSL. If the companies are integrated employers under the FMLA, their employees are added together for purposes of E-FMLA. Whether the various tests are met is a very fact specific determination, so we strongly recommend you seek legal counsel for this analysis.

How do I calculate hours of EPSL?

Full-time employees are entitled to 80 hours of EPSL. The number of hours of EPSL an employee receives is based on the number of hours they would normally be scheduled to work, including overtime. However, EPSL is capped at 80 hours over a two-week period. So, for example, an employee who is scheduled to work 50 hours a week may take 50 hours of EPSL in the first week and 30 hours of EPSL in the second week.

Part-time employees are entitled to leave for their average number of work hours in a two-week period. If the normal hours scheduled vary, you may use a six-month average to calculate the average hours.

How do I calculate payment for EPSL?

Payment is based on the reason for the employee taking the EPSL and the employee’s regular rate of pay, subject to certain caps, as outlined in our original guidance.

The DOL’s guidance clarifies that the amount paid is based on the employee’s regular rate of pay. You can determine regular rate of pay by taking the average of the employee’s regular rate over a period of up to six months prior to taking leave (or if the employee has been employed for less than six months, the average of the regular rate of pay for each week employed).

What if an employee is eligible for both E-FMLA and EPSL?

An employee who needs leave to care for a minor child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19 related reasons may be entitled to both E-FMLA and EPSL.

In this instance, the paid sick leave provision would provide two weeks of paid leave, which would overlap with the first ten workdays of unpaid E-FMLA. After the first ten workdays, the employee would receive paid E-FMLA (if needed).

What if my business has already provided employees paid sick leave related to coronavirus?

Your employees will still be eligible to receive EPSL beginning April 1, regardless of leave already provided.

What if my business has already denied employees sick leave related to coronavirus?

The EPSL and E-FMLA requirements are not retroactive. However, beginning April 1, employers must begin providing EPSL and E-FMLA leave under the Act.

What if I’m trying to comply but make a mistake?

The U.S. Department of Labor (DOL) has indicated that it will not bring any enforcement actions against employers for violations of the Act during the first 30 days so long as the employer has acted reasonably and in good faith, which includes making employees whole as soon as possible for any non-compliance.

 

Tax Credit Guidance from DOL & IRS

What payroll tax credits can my business receive?

Employers are eligible for a dollar-for-dollar tax credit for EPSL and E-FMLA paid to employees. To be clear, the tax credit is only available for payments that are required by EPSL/E-FMLA, so any payments you make that aren’t required by the FFCRA likely won’t be subject to the tax credit.

Eligible employers also are entitled to a tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

When will my business receive the tax credit?

The IRS has stated that eligible employers who pay EPSL or E-FMLA benefits will be able to retain an amount of the payroll taxes equal to the amount paid, rather than deposit them with the IRS. Taxes an employer could retain include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the amount of qualifying leave paid, employers will be able file a request for an accelerated payment from the IRS. They estimate that employers should be able to receive payment within 2 weeks.

The IRS will issue additional guidance on this process.

Open Questions

While the recent guidance has clarified a number of things, we still have a number of critical, unanswered questions:

Do the “Stay At Home” and “Shelter In Place” orders being issued by many states and localities constitute a “quarantine or isolation order” that would qualify employees for EPSL under category #1?

This remains unclear. The statutory language suggests that Category #1 is more focused on individual quarantines than broad ones, and the governmental authorities implementing these orders have in many cases emphasized that they are not quarantine orders. As such, it seems unlikely that the current state and local orders will be deemed to satisfy Category #1. We are hoping to receive additional guidance on this issue from the DOL.

If I have placed employees on furlough or temporary layoff due to our business having to be shut down or greatly diminished, will they be entitled to EPSL or E-FMLA?

Here too, we don’t have a clear answer. Employees on furlough or temporary layoff are likely counted for purposes of reaching the 500-employee threshold, but because their absence is due to lack of work – not one of the 6 categories for EPSL – it’s not clear that they qualify to receive EPSL or E-FMLA themselves. We will continue to monitor this issue and provide additional advice as appropriate.

New York Announces Emergency–And Ongoing—Paid Sick Leave

After announcing his intention to do so last week, New York Governor Cuomo has reached an agreement with the state legislature regarding paid sick leave. The agreement provides for immediate emergency paid sick leave for workers affected by the coronavirus (COVID-19) pandemic. The legislation also includes comprehensive paid sick leave for New York employees generally, which will become effective 180 days after passage.

Emergency Paid Sick Leave Provisions

These provisions are effective immediately.

The legislation provides for paid sick leave to employees under an order to quarantine, based on the size of the employer:

  • Employers with 10 or fewer employees and a net income less than $1 million are not required to provide paid sick leave, but must provide job protection for the duration of the quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million must provide at least 5 days of paid sick leave, job protection for the duration of the quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 100 or more employees, and all public employers (regardless of number of employees), must provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

These benefits must be provided in addition to any accrued sick leave an employee has under the employer’s current policies. In the event that the federal government provides for paid sick leave, employees will only be eligible for benefits above what is provided under federal law.

Employees who are subject to a quarantine order due to travelling to a country for which the CDC has issues a level two or three travel health notice, who travelled there not on company business, after the CDC issued the notice, will not be eligible for these benefits.

The legislation also amends Paid Family Leave and disability benefits requirements to allow for benefits to be paid upon the first full day of unpaid period of mandatory or precautionary order of quarantine, without any waiting period.

Separately, Governor Cuomo issued an executive order last week waiving the seven-day waiting period for Unemployment Insurance benefits for people who are out of work due to COVID-19 closures or quarantines.

 

Paid Sick Leave

These provisions will become effective 180 days after passage.

The legislation also generally requires employers to provide sick leave to their employees, based on the size of the employer:

  • Employers with 4 or fewer employees and a net income less than $1 million must provide at least 5 days of unpaid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 40 hours per year.
  • Employers with 5-99 employees and employers with 4 or fewer employees and a net income greater than $1 million must provide at least 5 days of paid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 40 hours per year.
  • Employers with 100 or more employees must provide at least 7 days of paid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 56 hours per year.

Sick leave may be used for the employee’s or the employee’s family member’s medical care, diagnosis, or treatment as well as absence from work to obtain services or assistance related to domestic violence, sexual offense, stalking, or human trafficking of the employee or the employee’s family member.

Employees who already have paid sick leave or paid time off policies that exceed these requirements are not required to provide additional leave.

Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.

 

For more resources and LP’s response to COVID-19, visit this webpage.