FFCRA Guidance and Important Clarifications

With the passage of the Families First Coronavirus Response Act, employers with fewer than 500 employees now have to comply with two new paid leave requirements.

The Department of Labor recently issued a third version of updated FAQ guidance about how affected businesses need to adhere to this part of the law.  Some of the most important clarifications in the guidance include:

  • The paid leave provisions of the law take effect on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  • The paid leave provisions of the law apply to businesses with fewer than 500 employees. A business needs to count all of its full and part-time employees at the time an employee wishes to take the leave when determining if they have fewer than 500 employees.  All employees working in the United States and its territories must be counted, including full and part-time workers, employees on leave, day laborers or temporary workers from an agency, and any workers jointly-employed by the company and another entity.
  • Employers with joint interest (controlled groups) generally are considered to be separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). These are different rules than what employers use to count employees for other requirements, like the employer mandate.
  • There is an exemption for small businesses with fewer than 50 employees who can document that compliance will jeopardize the viability of the business as a going concern. Companies just have to document why their company meets this standard; they do not need to file anything with the federal government. Emergency regulations expected within the week will explain the qualifying criteria in more detail. However, questions 58 and 59 of the new FAQ guidance also provide more details about the exemption.
  • People caring for children due to COVID-19 precautions may be eligible for both the emergency paid sick leave and the emergency expanded FMLA leave, but not at the same time.
  • People who take the emergency FMLA leave and are also eligible for traditional FMLA leave can only take 12 weeks of FMLA leave total, and the emergency expanded FMLA leave is the only type of FMLA leave that must be paid.
  • People who are unable to perform their work, including teleworking tasks or work required during teleworking hours because they need to care for a child due to COVID-19 related reasons, are entitled to take expanded family and medical leave. If a person can telework while caring for their child, then paid sick leave and expanded family and medical leave is not available. People can also take the expanded FMLA leave intermittently while teleworking.
  • The new emergency paid sick leave is in addition to any sick leave or paid benefits provided under any other local, state, or federal law.
  • If an employer closes a person’s worksite, they are not entitled to paid sick leave or expanded family and medical leave, but they may be eligible for unemployment insurance benefits. This is true if the employer closes the worksite for lack of business. It also applies if the employer was required to close according to a Federal, State, or local directive.
  • If an employer furloughs someone, they are not entitled to then take paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits.
  • If an employer reduces an employee’s work hours, the employee may not use paid sick leave or expanded family and medical leave for the hours they are not working, even if the reduction in hours was somehow related to COVID-19. However, an employee may take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents them specifically from working a full schedule.
  • People on expanded family and medical leave are entitled to continue their group health coverage during the same terms as if they continued to work, including family coverage. Employees must generally continue to make any regular contributions to the cost of their premiums.
  • Questions 56 and 57 provide detailed definitions of definition of an emergency responder and health care provider for the purposes of the exemptions to the leave and FMLA provisions.
  • Employers have a 30-day non-enforcement period for good faith compliance efforts. During that time, the Department of Labor will focus on compliance assistance for companies that need it.