This article originally appeared online at ArkansasBusiness.com.
So much has changed since February. For one thing, many of us are having discussions on a daily basis about a law that didn’t exist two months ago — the Families First Coronavirus Response Act (FFCRA).
As you probably know, the FFCRA requires two different types of paid leave — Emergency Paid Sick Leave (EPSL) and Expanded FMLA Leave (EFMLA Leave) — for all employers with fewer than 500 employees. An employee can take up to 80 hours of EPSL for a variety of reasons, including if that employee:
- is subject to a government-ordered quarantine or isolation order
- has been advised by a health care provider to self-quarantine
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- is caring for an individual subject to quarantine or isolation
- is caring for his or her child due to schools or daycares being closed or the unavailability of a child care provider.
An employee can take up to 12 weeks of EFMLA leave for the reasons listed in the final bullet point above. Depending on a variety of things, the leave may be paid at full or two-thirds of regular compensation, and there are daily and overall maximum caps on the dollar amount of paid of leave.
Things were extremely fluid for a few weeks and still are to a degree, but the Department of Labor’s rule answers many questions about the FFCRA’s paid leave provisions. Here are a few particularly notable issues to watch for with your own employees.
For purposes of taking any type of child care-related leave under the EPSL or EFMLA provisions of the FFCRA, an employee’s normal “child care provider” doesn’t necessarily have to be paid — a family member or friend, such as a neighbor, who regularly cares for the employee’s child, can be one. In order to be eligible for child care-related leave (whether EPSL or EFMLA leave), no other suitable person must be available to care for the child.
A son or daughter for purposes of the FFCRA, much like the “regular” FMLA, can include adopted or foster care children, a step child, a legal ward and a person who is over 18 years of age and incapable of self-care due to a disability.
The definition of “subject to a quarantine or isolation order” includes those situations in which a government authority at any level has advised certain categories of citizens (like certain age ranges or medical conditions) to shelter in place, stay at home or quarantine/isolate. On this point, we note that the Centers for Disease Control and Prevention has advised certain individuals to shelter in place.
Intermittent work is normally not allowed for either EPSL or EFMLA leave unless
- the employer agrees
- the leave is needed because child care is unavailable for reasons related to COVID-19
But if work can be done from home, then the parties can agree to allow it for any reason on an intermittent basis.
“Full-time” for purposes of computing paid leave entitlements really means full-time – 40 hours a week. Anything else is considered part-time, and that affects the amount of paid leave to which an employee is entitled.
The potential exclusion from the FFCRA for small businesses with fewer than 50 employees only applies to EFMLA leave and EPSL due to school/day care reasons. All covered businesses are stuck with providing the other types of EPSL.
Just about every employee of a “health care provider” can be excluded from the FFCRA leave provisions; whether this is practical or smart is another question. By contrast, “emergency responders” must be “necessary for the provision of transport, care, healthcare, comfort and nutrition” of patients in order to be excluded (my emphasis).[NOTE: Excluding all employees of health care providers turned out not to be practical – on September 16, 2020, the DOL narrowed the definition of those employees subject to the exemption. See this related article by Shelby Howlett on the updates to the DOL rule: wlj.com/department-of-labor-updates-four-key-ffcra-regulations/]
If an employer not otherwise subject to the FMLA violates the FFCRA provisions related to expanded FMLA leave, then that employer is only subject to a Department of Labor complaint and not a private lawsuit. But don’t take this as permission to tempt fate.
If a company wants to support the tax credit for payment of COVID-19 related leave, there’s a list of items that must be documented depending on the type of leave taken under Sections 826.100 and 826.140 and IRS guidance.
It’s always a good idea to fully understand a new law’s requirements before applying it to any particular employee’s request for either type of FFCRA leave. To avoid any misunderstandings, consider drafting a FFCRA paid leave policy as an addendum to your employee handbook and preparing paid leave request forms that can be filled out by your employees, and definitely post and distribute (via e-mail) the FFCRA poster.This information is provided by Wright, Lindsey & Jennings, LLP for educational and informational purposes only and is not intended and should not be construed as legal advice. Businesses and individuals with additional questions should contact Stuart Jackson or a member of the Labor & Employment team.