Recently, the U.S. Department of Labor Wage and Hour Division (“DOL”) issued temporary regulations implementing the Families First Coronavirus Response Act (“FFCRA”)[1] (“Temporary Rule”). This 124-page searchable document provides employers and employees further clarification on the protections and obligat ions afforded under FFCRA’s new paid leave laws and builds on the four earlier guidance documents issued by the DOL in March 2020.
Under FFCRA, tax credits are available to assist covered employers who pay their eligible workers for sick leave (“EPSLA”) and/or expanded family and medical leave (“EFMLEA”) taken for six COVID-19 related circumstances. Specifically, a covered employee is entitled to two weeks of paid sick leave under EPSLA, at the employee’s regular rate of pay, if the employee is unable to work because he or she is either quarantined or having COVID-19 symptoms and seeking a diagnosis. A covered employee is also entitled to two weeks paid sick leave, at two-thirds of the employee’s regular rate of pay, if the employee is unable to work because he or she is either caring for someone subject to quarantine, or caring for a child under the age of 18.
Under EFMLEA, an eligible employee is entitled to twelve weeks of leave, where the employee is unable to work due to his or her need to care for a child for reasons related to COVID-19 (including lack of child care or school closures). While the first two weeks are unpaid, an employee can utilize their paid leave through their employer policy or request paid sick leave under EPSLA during this time period. Thereafter, for the remaining ten weeks, an employee will be paid at two-thirds the employee’s regular rate of pay.
Requesting paid time off due to fear of contracting the COVID-19 virus at work does not fall within any of the six FFCRA paid sick leave categories. But for certain workers, particularly health care workers, such fear could be heightened due to an underlying serious mental health condition such as PTSD, in which case the regular FMLA leave benefits may apply.
“Covered” employers under FFCRA employ fewer than 500 employees, defined as “full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency. Independent contractors are not counted towards the 500-employee threshold.” The Temporary Rule provides an extensive summary on the rights and relief afforded to eligible employees and covered employers, details which employees and/or employers may be exempt under FFCRA, provides procedural instructions for those requesting leave and provides new notices which are required to be posted by covered employers.
There are two major exemptions to FFCRA coverage. The first states that covered employers may exclude those employees who are health care providers or emergency responders from paid sick leave and/or expanded family and medical leave. As defined by the Temporary Rule: “a health care provider is 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 definition is broader than the existing FMLA definition. An emergency responder is defined as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.” Employers have the option to utilize this exemption, at their discretion, which the DOL guidance notes will hopefully be exercised judiciously, especially given the high infection rate for health care workers and documented burnout.
The second exemption is for small businesses (defined as fewer than 50 employees), if an authorized officer of the business has determined that FFCRA compliance would jeopardize the financial viability of the company. Such determinations must be based on an evaluation of business expenses and revenues, the number of available employees to perform essential operations and whether the absence of employees with specialized skills or knowledge would pose a risk to the company’s sustainability.
In order to obtain FFCRA benefits, the employee requesting leave must submit paperwork to their employer, indicating the requested leave dates, the reason for leave and a statement that the employee is unable to report to work or telecommute due to COVID-19 reasons. Additionally, if relevant, the employee must identify the health care provider who suggested quarantine for COVID-19 and further, if a child is involved, the name of the child and any school or child care center that is closed due to COVID-19. In turn, an employer must retain submitted documents for four years. If leave is denied, the employer must sufficiently document the reasons for the denial.
Regardless of whether an employee has an employment contract, is subject to a collective bargaining agreement or is at will, the employer cannot deduct the FFCRA paid sick leave from the employee’s accrued paid leave. The employee can elect whether to use the FFCRA paid sick leave under FFCRA prior to using any other type of leave to which they are already entitled.
However, while an employer cannot force an employee to first take other available leave prior to taking paid sick leave, an employer may require or the employee can elect to take other sources of available paid leave concurrently with EFMLEA, to care for a child. If EFMLEA is used concurrently with another source of leave, the employer is required to pay the employee the full amount he or she is entitled to under their employer’s paid leave policy.
In addition to the FCCRA four-year record keeping requirement, covered employers must now post a notice of the new FFCRA requirements. The poster also boldly displays the “no-retaliation” FFCRA provisions advising employees that employers who take adverse action against them will be subject to sanctions and enforcement proceedings by the DOL.
Since many employees are now telecommuting, employers can satisfy the posting requirement by sending the notice via email, regular mail or posting the notice on an employee portal or website. The DOL will stay enforcement actions for failure to comply with the new posting requirements until April 17, 2020 – provided the employer made a good faith effort to comply with the FFCRA.
Finally, covered employers should update their Employee Handbook or leave policies to include the new FFCRA leave provisions, even though they are currently set to expire December 31, 2020. A note that statutory leave benefits are evolving and subject to change would probably also be a prudent inclusion.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including employment, corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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[1] An upcoming Blast will discuss the interplay between the New York State Emergency Paid Sick Leave Law, effective May 5, 2020, New York City’s Paid Safe and Sick Leave Law, effective May 5, 2018, and FCCRA.