The US Department of Labor has issued some guidance for employers as we get prepared for the Paid Sick Leave and Paid Family Leave components of the FFCRA (the “Act”). While this guidance does not have the force of actual DOL regulations, it provides both employers and employees with some degree of certainty as we move into April.
The guidance is quite lengthy, and can be found here:
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
We have summarized some of the issues that have been raised by many of our clients over the past week or so, but there may be guidance specific to your business that can be found on the DOL’s website, even if it is not addressed below.
Brief Summary of the Act
Employers with 500 employees or less must provide Paid Sick Leave to employees who are unable to work or telework because they: (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis. Those employees must be paid at their regular rate of pay for two weeks, at a maximum of 80 hours per two-week period and $511.00 per day.
Employers with 500 employees or less must provide Paid Sick Leave to employees who are unable to work or telework because they are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services. These employees are entitled to compensation at 2/3 of their regular rate of pay for two weeks, at a maximum of 80 hours per two-week period and $200.00 per day.
Employers with 500 employees or less must provide Paid Family Leave to employees who are unable to work or telework because they are caring for their child whose school or place of child care is closed, or whose child care provider is unavailable, due to COVID-related reasons. These employees are entitled to an additional 10 weeks of compensation at 2/3 of their regular rate of pay, at a maximum of $200 per day.
New DOL Guidance
Here are some of the more critical aspects of the guidance, based on questions we have received from clients over the past week:
- The effective date of the FFCRA’s paid leave provisions is April 1, 2020, and applies to leave taken until December 31, 2020
- The Paid Sick Leave can only be used once at a cap of 80 hours over a two week period, regardless of the reason. In other words, if an employee uses the Paid Sick Leave because his child care provider is unavailable, he cannot use it later if he becomes ill or subject to a quarantine. On the other hand, if an employee no longer has a qualifying reason to use Paid Sick Leave before the end of the two-week period (if, for example, an employee comes off of a quarantine on April 6th), an employee can take any remaining Paid Sick Leave at a later date.
- Employers do not get a “credit” for leave they may have provided prior to April 1, 2020.
- Employers must maintain records of the Paid Sick Leave or Paid Family Leave that they provide, if they intend to claim the payroll tax credit. Employers must also be prepared to substantiate each employee’s need for leave. The forms will be available from the IRS. As of the date of this bulletin, the IRS has not yet provided its instructions on the type of documentation that will be accepted. The DOL did specifically state that postings on school websites or generally available information relating to school closures will be acceptable to support the need for Paid Family Leave.
- If an employee is able to telework intermittently for a COVID-related reason, she may be eligible for Paid Sick Leave or Paid Family Leave on an intermittent basis, so long as the employer and employee can agree to a schedule that works for both.
- Paid Sick Leave is not available to employees whose hours get reduced, who are furloughed or whose workplace closed due to a state Shut Down Order (unless those employees have another qualifying reason for the leave). Similarly, Paid Sick Leave will not be available to employees whose hours get reduced or who cannot work due to a general COVID-related work slowdown. Unemployment benefits may be available to those employees.
- If an employer closes its worksite while employees are receiving Paid Sick Leave or Paid Family Leave, the employer is not required to pay out those benefits to those employees after the closure date. Unemployment benefits may be available to those employees.
- Employees are only entitled to a total of 12 weeks per year of FMLA leave, and this remains true even with the expanded Family and Medical Leave for child care needs. For example, if an employee took six weeks of leave under the FMLA earlier in the year, that employee will only be eligible for six additional weeks under the expanded FMLA leave in the Act. Employees remain capped at 12 weeks of FMLA per year.
- An employer with fewer than 50 employees is exempt from providing Paid Sick Leave or Paid Family Leave if it would jeopardize the viability of the business as a going concern. To qualify for the exemption, an authorized officer of the business must have determined that at least one of the following three conditions exists:
(a) The provision of Paid Sick Leave or expanded Family and Medical Leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
(b) The absence of the employee or employees requesting Paid Sick Leave or expanded Family and Medical Leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
(c) 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 or employees requesting Paid Sick Leave or expanded Family and Medical Leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Currently, the DOL has not issued the process whereby employers can apply for this exemption, but the guidance encourages businesses, for now, to document the reasons as set forth above.
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Please contact Heather Hammond (hhammond@gravelshea.com) at
Gravel & Shea PC if you have questions or would like assistance.
