by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
March 31, 2020
In the fast-paced COVID-19 world, the U.S. Department of Labor (DOL) has issued more Questions and Answers about the Families First Corona Virus Reponses Act (FFCRA). And not only are we 
This discussion includes material revisions to DOL answers previously provided in earlier versions of the Q&A, and coverage of Questions 15 through 59. For even more information, see my post about the act itself as passed, and this post with analysis of the first 14 questions. (How cute that seems now – it seems like just yesterday!)
Even though this is a lengthy post, persist! And I encourage employers to read the actual Q&As for more details on topics of interest to them.
As used here, EPSL refers to the Emergency Paid Sick Leave Act and its benefits. EFMLA refers to the Emergency Family and Medical Leave Expansion Act and its benefits.
Documentation (Questions 15-16): Employers, don’t be lax on the documentation requirements if you want to get those tax credits. An employer must obtain appropriate documentation for an employee’s paid leave (whether sick leave or EFMLA) if the employer intends to claim a tax credit under the FFCRA for such payments. Unfortunately, the DOL provides little guidance regarding what is sufficient documentation, punting instead to the IRS. (“You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”) As of this writing the IRS has yet to publish any such materials.
There is a little more help with respect to documentation for paid leave under EFMLA, which covers only leaves necessitated by the employee’s child’s school closure or unavailability of child care due to COVID-19. Employers may require documentation for this leave reason “to the extent permitted under the certification rules for conventional FMLA leave requests,” whatever that means! But the DOL does provide examples, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper; or an email from an employee or official of the school, place of care, or child care provider.
An employer is not required to provide EPSL or paid EFMLA leave if materials sufficient to support the applicable tax credit have not been provided by the employee.
Telework (Questions 17-19). If an employer offers and an employee is able to work from home, then the employee is not entitled to EPSL or EFMLA leave and benefits. The answer to Question 19 states, “Of course, to the extent you are able to telework while caring for your child, EPSL and expanded family and medical leave is not available. Thus, it appears that if an employee declines telework arrangements although he is able to work from home (at least during normal work hours) he is not entitled to the FFCRA pay benefits. This might arise, for example, when the employee is staying home due to a school closure but the employee’s child is old enough to care for himself at home during the day; or when the employee is quarantined but has not developed COVID-19.
Intermittent leave (Questions 20-22). A telework employee can take intermittent leave under both EPSL and EFMLA in any increment as long as the employer and employee agree (a new concept that we wish applied to regular FMLA intermittent leave!).
For work at the employee’s usual worksite, the availability of intermittent leave is more limited. EPSL must be taken in full-day increments, and cannot be used intermittently at all if, for example, the employee (or a family member) is under quarantine or is experiencing COVID-19 symptoms and seeking medical diagnosis. Intermittent leave is available, if the employer and employee agree, for both EPSL and EFMLA when the need for leave is due to a child’s school or day care closure.
Once started, the employee must continue using EPSL until the reason no longer exists or the employee exhausts the EPSL allotment. However, if the employee no longer has a qualifying reason for taking EPSL before she exhausts her allotment, she may take any remaining EPSL at a later time, until December 31, 2020, if another qualifying reason occurs.
Closed worksites, furlough, reduced hours, and FFCRA benefits (Questions 23-28). It appears that the closure of a worksite – for whatever reason – trumps (ahem!) the right to EPSL or enhanced FMLA. That is, even if an employee is experiencing a situation that would entitle her to paid leave and/or FMLA protections, those are not available once the business closes because the employee is no longer missing work due to the covered reason. In other words, there is no work to take leave from. The same applies if an employee is furloughed. The employer must pay for any qualifying leave taken while the business was open or before the furlough, but not more than that. Similarly, if an employer orders reduced hours, the employee cannot claim FFCRA benefits for the missed work hours because the employee is not prevented from working due to a FFCRA-qualifying reason.
Coordination with other paid leave policies, laws, and CBAs (Questions 31-34, 46). If an employer offers paid leave benefits (such as vacation, PTO, sick leave, etc.) the employee gets to choose which benefit to use – one from the employer’s existing policies or a benefit under the FFCRA. They cannot be used concurrently unless the employer agrees to allow the employee to supplement or top off FFCRA benefits with company paid leave benefits, up to the employee’s normal earnings. Whether to use such benefits, if offered by the employer, is up to the employee.
EPSL is in addition to other leave mandated by any federal, state, or local law. The employer must comply with both separately. The same goes for leave provided by a collective bargaining agreement.
An employer may elect to pay employees more than the amount required under the FFCRA, whether by allowing the employee to supplement FFCRA payments with existing paid leave or by simply paying more than the FFCRA requires. However, the employer will not receive tax credit for any excess amounts paid.
“Son or daughter” (Question 40). Both EPSL and EFMLA provide job-protected, paid leave when an employee needs to care for a “son or daughter” due to the closure of the child’s school or the unavailability of child care due to COVID-19. The DOL has clarified that both laws include not only a child under age 18, but also one 18 years or older who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. This resolves an inconsistency between the two laws. For additional information on requirements relating to an adult son or daughter, see the DOL’s FMLA Fact Sheet #28K.
Job protection (Question 43). Both EPSL and EFMLA entitle the employee after leave to be restored to the same or equivalent position. However, as with regular FMLA, an employee is not protected from employment actions that would have affected the worker’s employment regardless of leave. The DOL uses the example of a layoff that would have occurred whether or not the employee took leave. In reality, this also applies if an employee is terminated for cause that has nothing to do with the employee’s covered leave or request for leave. The “key employee” provision of the FMLA is also still applicable.
In addition, there is an exemption to the job restoration requirement for employers with fewer than 25 employees if the position was eliminated for reasons related to COVID-19 and the employer makes reasonable efforts to restore the employee to an equivalent position for the next 12 months.
Interaction of EPSL and FMLA (Questions 44-47). The EPSL and FMLA of any type are separate entitlements. If the employee’s reason for taking EPSL coincides with the EFMLA reason, the two run concurrently and the employee is entitled to the benefits of both. Example:
- An employee’s child’s school closes due to COVID-19. The employee can take EPSL to
receive paid time off for the first 80 hours/2 weeks. If the employee has been working for
the employer for at least 30 days, the employee is also entitled to EFMLA protections
during the first 10 days of leave and the EFMLA pay benefits that commence after 10 days.
On the other hand, EPSL used for other covered reasons, such as the employee’s or family member’s quarantine, does not count as FMLA and does not reduce the employee’s FMLA entitlement. One possible exception is where the employee or a family member is showing symptoms of COVID-19 and is seeking a medical diagnosis. In that case, EPSL would be available and the employee’s or family member’s condition might ultimately satisfy the definition of serious health condition under the FMLA and qualify for coverage by both – but not the 2/3 pay provisions of EFMLA.
The EFMLA provisions do not increase the amount of FMLA leave an employee is entitled to. The total entitlement for all leave reasons combined remains at 12 weeks in a 12-month period. And, remember that FMLA for school closures ends on December 31, 2020.
“Part time” and “full time” under FFCRA (Questions 48-49). Under the EPSL, full-time employees are entitled to up to 80 hours of paid leave and part-time employees are entitled to pay for the number of hours they typically work in a 2-week period. EPSL does not define full time and part time. The DOL now tells us that a full-time employee is normally scheduled to work 40 or more hours per week, and a part-time employee is normally scheduled to work fewer than 40 hours per week.
In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees; but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.
Applicability of FFCRA to public employers/employees (Questions 52-54). OK, I don’t have much to say here. My head is spinning from reading 54 questions and answers so far. The answers to whether EPSL and EFMLA apply to public sector workers are different. EPSL? “Generally, yes.” EFMLA? “It depends.” So I recommend anyone affected by this issue read Questions 52 and 53, which offer a lot of detail.
Who is a “health care provider”? (Questions 55-56). We have two answers to this question. First, a “health care provider” (HCP), as the term is used to determine who can tell an employee to self-quarantine due to COVID-19, means a licensed doctor of medicine, nurse practitioner, or other HCP permitted to issue an FMLA certification.
Second, both EPSL and EFMLA allow an employer to exempt HCPs from coverage. For this purpose, the term includes anyone employed at any doctor’s office, hospital . . . clinic . . . medical school . . . nursing facility . . . pharmacy . . . including any permanent or temporary facility . . . You get the idea – the list is very extensive and I have left out many examples, so read Question 56 if this is important to you.
Who is an “emergency responder”? (Question 57). Both EPSL and EFMLA allow an employer to exempt emergency responders from coverage. For this purpose, the term includes “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.” Examples include national guard, law enforcement officers, various types of emergency personnel, and 911 operators. The DOL provides many more examples in Question 57.
Small business exemption (Questions 58-59). An employer with fewer than 50 employees is exempt from providing EPSL and EFMLA when doing so would jeopardize the viability of the small business as a going concern, but ONLY as to school/child care closures or unavailability due to COVID-19. There is no exemption for the other 5 reasons for EPSL (see our prior blog post here for the list).
The exemption is available only if:
- The business has fewer than 50 employees;
- Leave is requested because of the employee’s son or daughter’s school/child care closure
or unavailability due to COVID-19; and - An authorized officer of the business has determined that at least one of the following
three conditions exists:
-
- The provision of 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; or - The absence of the employee or employees requesting 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 - 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 leave and these labor or services are needed
for the small business to operate at a minimal capacity.
- The provision of leave would result in the small business’s expenses and financial
WHEW! Is anyone else ready for a cold beverage? We’re done – at least for now – but please remember to check back frequently for updates, as things are changing in this COVID-19 world by the hour.
Matrix Can Help!
At Matrix we don’t just track all this state and federal legislation on a daily (hourly?) basis – we prepare to jump into action! We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision as fast as they come out of the oven, still warm and chewy. So reach out to your account manager with specific questions and check back with us early and often.