Update on the Ever-changing Landscape of FFCRA

The information below is for general informational purposes only. It should not be construed as legal advice. Always consult an employment attorney for definitive decision making on employment related matters.

April 6, 2020 Updates to FFCRA

When Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020 there immediately were more questions than answers. Since then the Department of Labor (DOL) has provided some answers to questions, while also completely reversing earlier rules, and at times changing answers previously given.

Some of the chaos is a result of the speed with which all of this new legislation developed. The DOL agrees that indeed it bypassed the normal process where it would typically issue a proposed rule and receive public comments (usually occurring over a several-month, or up to a yearlong, period). Instead, the agency stated that it had “good cause” under federal administrative law to move quickly and decisively in order to release a direct final rule on which so many American employers were counting.

Below are a few updates to some of the more common questions that have come up over the last couple of weeks.

Documentation

While the DOL does not explicitly say an actual doctor’s note, it does now say that documentation is necessary to substantiate the tax credit. Further, employers should maintain this documentation for four years.

Documentation supporting an employee’s request for Emergency Paid Sick Leave Act (EPSLA) or Emergency Family and Medical Leave Expansion Act (EFMLA) must include an employee’s signed statement with:

  1. the employee’s name;
  2. the date(s) the employee is requesting leave;
  3. the COVID-19 qualifying reason for leave; and
  4. a statement that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Depending on the COVID-19 qualifying reason for leave, additional documentation may be required:

  • An employee requesting EPSLA due to a federal, state or local quarantine or isolation order related to COVID-19 must provide the name of the government entity that issued the quarantine or isolate order governing that employee.
  • An employee requesting EPSLA due to a health care provider advising them to self-quarantine due to COVID-19 concerns must provide the name of the healthcare provider who advised the self-quarantine. An employee requesting EPSLA to care for an individual subject to a quarantine or isolation order, or advised by a health care provider to self-quarantine, must provide either:
    1. the government entity that issued the quarantine or isolation order the employee is subject to or
    2. the name of the health care provider who advised the self-quarantine.
  • An employee requesting to take EPSL or EFMLA to care for a child due to a school or child care closures, or unavailability of child care due to a public health emergency, must provide the following:
    1. the name of the child;
    2. the name of the school, place of care, or child care provider that closed or became unavailable; and
    3. a statement representing that no other suitable person is available to care for the child during the period of the requested leave.

Healthcare Exemption:

This definition applies only for the purpose of determining whether an employer may elect to exclude an employee from taking leave under EPSLA or EFMLA because of being a healthcare provider. The new rules adopt a more broad definition than the original definition suggested and says:

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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any 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. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

Under 50 Partial Exemption:

The potential exemption referenced originally by the DOL for employers under 50 employees is clarified to a partial potential exemption under FFCRA and specific to child care/school related closures.

Employers with fewer than 50 employees will not have to provide EPSLA or EFMLA to employees who need to care for their son or daughter whose school or place of care is closed, or child care provider is unavailable, for COVID-19 related reasons, if one of three factors exist:

  • doing so would raise expenses and financial obligations above available business revenue such that the employer would cease operating at a minimal capacity;
  • the requesting worker’s absence would pose a substantial risk to the employer’s financial health or operations because of their specialized skills, knowledge of the business, or responsibilities; or
  • the employer can’t find enough able, willing, available, and qualified workers to perform the work of the employee requesting an absence.

In such cases, the rule notes that employers must document the facts and circumstances that justify the denial and retain those records for its own files (not to be submitted to the DOL).

EPSLA, Reason #1:

Whereas the DOL previously indicated that ‘stay-at-home’ orders are not the same as ‘isolation’ or ‘quarantine’ orders as referenced in the EPSLA section, reason #1, they now appear to be saying that a ‘stay-at-home’ order can fit within the definition. However, it does not necessarily mean that employees will qualify for EPSLA.

The new DOL rule (as opposed to their previous rule), states that a quarantine or isolation order broadly includes “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders” that cause the employee to be unable to work even though the employer has work for them. The DOL states that this also includes when such orders advise categories of citizens (such as of certain age ranges or of certain medical conditions) to shelter-in-place or stay-at-home.

However, the DOL states than an employee may take Emergency Paid Sick Leave for this reason only if, “but for being subject to the order,” the employee would be able to perform work that is otherwise available.

Therefore, an employee subject to a quarantine or isolation order may not take Emergency Paid Sick Leave where the employer does not have work for the employee as a result of the order or other circumstances. This is because the employee would be unable to work even if he/she was not required to comply with the quarantine or isolation order.

The DOL explains, the significant question in this analysis is “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.

The DOL provides an example to this point using a scenario that involves a coffee shop that closes temporarily, or indefinitely, due to a downturn in business related to COVID-19.

An employee subject to a quarantine or isolation order is not eligible for EPSLA because their inability to work is not due to the need to comply with a stay-at-home order, but rather due to the closure of the place of employment. Importantly, the DOL also states that this is true even if the closure of the business is directly related to such an order (the order forced the coffee shop to close) or indirectly related to such an order (the coffee shop closed due to customers being required to stay-at-home). In both situations, the reason for the employee being unable to work is because the customers or the coffee shop are subject to the order, not because the employee was subject to the order. Therefore, the employee in that situation would not be eligible for Emergency Paid Sick Leave under this qualifying reason.

The example suggests that for the many employees currently unable to work because their place of employment has closed, even as the direct or indirect result of a shutdown order, they still will not be eligible for Emergency Paid Sick Leave under EPSLA, reason #1.

“Enforcement” Delayed By A Few Weeks

The DOL says that it won’t “enforce” the rules for employers operating in “good faith” until April 18, 2020.

This does not mean that employers should pay no mind to the rules until April 18th. The FFCRA effective date remains April 1, 2020.

It means that if an employer acted in good faith as of April 1, 2020, to try and be in compliance with the previous rules and answers provided by the DOL and now it turns out that the action was incorrect based on the new rules, employer should exhibit good faith by correcting the action based on the new rules and take this time to understand FFCRA in its entirety so as to be in full compliance.

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