October 6, 2020

Families First Coronavirus Response Act: Paid Leave

On April 1, 2020, the U.S. Department of Labor announced new action regarding how American workers and employers will benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). Details of the rules can be found here.

FFCRA helps the United States combat the workplace effects of COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus. The Department’s Wage and Hour Division administers the paid leave portions of the FFCRA.

The Department is promulgating regulations to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to assist working families facing public health emergencies arising out of the COVID-19 global pandemic. The leave provisions are created by a time-limited statutory authority established under the FFCRA and are set to expire on December 31, 2020. The temporary rule is effective from April 1, 2020 through December 31, 2020.

Qualifying Reasons for Leave Related to COVID-19
Under the FFCRA, an employee at a business with fewer than 500 employees or at certain public entities is entitled to take leave related to COVID-19 if the employee is unable to work because he or she:

1. Is subject to a federal, state or local quarantine or isolation order.
2. Has been advised by a health care provider to self-quarantine.
3. Is experiencing symptoms associated with COVID-19 and is seeking a medical diagnosis.
4. Is caring for an individual subject to a quarantine or isolation order.
5. Is caring for a child whose school or place of care is closed or unavailable due to coronavirus-related reasons.
6. Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services. The agency has not specified any other substantially similar condition as of yet.

Up to two weeks of paid sick leave is available to qualifying employees. For the first three reasons, the amount of pay is based on either the employee’s regular rate of pay or the applicable state or minimum wage, whichever is higher, and it is to be paid at 100 percent, up to $511 daily and $5,110 total. For the fourth and sixth reasons, the amount of pay is two-thirds of either the employee’s regular rate of pay or the applicable state or minimum wage, whichever is higher, up to $200 daily and $2,000 total.

An additional 10 weeks of partially paid expanded family and medical leave is available to some employees when their children’s school or place of child care is closed. The payment amount in this instance is two-thirds of either the employee’s regular rate or the applicable state or minimum wage, whichever is higher, up to $200 daily and $12,000 total ($10,000 plus up to $2,000 of unused paid sick leave if applied to the first 10 days). To be eligible for this leave, an employee must have been employed for at least 30 days prior to his or her leave request.

Note that an individual generally is entitled to paid sick leave under the FFCRA regardless of how much leave has been taken under the Family and Medical Leave Act (FMLA), the DOL said in recent guidance. But if someone takes paid sick leave concurrently with the first two weeks of emergency family and medical leave, which otherwise would be unpaid, those two weeks do count toward the 12 workweeks in the FMLA’s 12-month period.

“This rule hopefully provides some answers and relief,” said Wage and Hour Administrator Cheryl Stanton.

Additional information about COVID-19 and the workplace, including fact sheets, questions and answers, and posters, is available from the DOL.

Documentation of Need for Leave

The DOL regulations explain that for paid sick leave or expanded family and medical leave, an employer may require employees to follow reasonable notice procedures as soon as practical. That can be after the first workday or portion of a workday for which an employee receives paid sick leave in order to continue to receive such leave, the DOL stated in the preamble to the regulations.

The DOL said the employee must provide a signed statement containing:

• The employee’s name.
• The date(s) for which leave is requested.
• The coronavirus-qualifying reason for leave.
• A statement that the employee can’t work or telework because of this reason.

In addition, an employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject, if that is the reason for paid sick leave, according to the DOL.

An employee seeking leave because he or she is self-quarantined must provide the name of the health care provider making the quarantine recommendation. Someone caring for a person who is quarantined must provide either the government entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual to self-quarantine.

The DOL said an individual requesting expanded family and medical leave must provide:

• The name of the child being cared for.
• The name of the school, place of care or child care provider that closed or became unavailable due to coronavirus reasons.
• A statement representing that no other suitable person is available to care for the child during the period of requested leave.

The last point is important, noted Jeff Nowak, an attorney with Littler in Chicago, and “mirrors the IRS’ assumption that there’s only one caregiver.”

The normal FMLA certification rules apply to an employee’s own serious health condition related to the coronavirus and to the employee’s need to care for a spouse, son, daughter or parent with a serious health condition.

If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave, the regulations state.

“More guidance will be forthcoming,” Stanton said.

Additional resources:

COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs from IRS.

Families First Coronavirus Response Act: Questions and Answers by DOL.

TimeClock Plus is here to help! TimeClock Plus offers tools necessary for tracking employee leave and can have your organization up and running in as little as 48 hours. Contact us for details. In the meantime, we’ll continue to monitor this fluid situation and provide the latest information on the COVID-19 pandemic, including emerging legal challenges and practical recommendations