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Answers to Lingering FAQs Regarding the Families First Coronavirus Response Act

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the “FFCRA”) into law.  As employers try to keep up with the ever-changing legal landscape in the face of the novel coronavirus, numerous questions are arising from employers regarding what this new federal law means for their workforce. On March 23, 2020, the Department of Labor (“DOL”) issued guidance regarding the FFCRA. However, numerous questions remain unanswered. Below we provide answers to additional questions we are receiving, or anticipating receiving, from our clients. We will continue to update this list regularly as more questions and information emerge regarding the FFCRA. In the interim feel free to reach out to a member of Mintz’s Employment Labor and Benefits team to submit any additional questions. 

General Questions Regarding the FFCRA

For purposes of brevity, reference to the Emergency Paid Sick Leave Act will be stated as “EPSLA,” while reference to the Emergency Family and Medical Leave Expansion Act will be stated as “EFMLEA”. 

1. Q: My company has over 500 employees however we still want to provide paid leave consistent with the EPSLA, will we qualify for the tax credit? 

A: Likely no. While the FFCRA does not provide definitive guidance on this question, in the context of tax credits, the FFCRA defines “qualified sick leave wages” as “wages…paid by an employer which are required to be paid by reason of the Emergency Paid Sick Leave Act” (emphasis added). Given the explicit use of the term “required,” it is presumed that if an employer is not required to provide paid sick leave under the EPSLA, then they will not be eligible for tax credit. 

2. Q: My company has over 500 employees however we still want to provide paid leave consistent with the EFMLEA, will we qualify for the tax credit? 

A: Likely no. While the FFCRA does not provide definitive guidance on this question, in the context of the payroll credit, the relevant language states that “qualified family leave wages,” “means wages…and compensation… paid by an employer which are required to be paid by reason of the Emergency Family and Medical Leave Expansion Act…”. (emphasis added). Given the inclusion of the word “required,” it is presumed that if an employer is not required to provide paid leave under the EFMLEA, they will not be eligible for the payroll credit. 

3. Q: My Company has under 50 employees total, am I automatically exempt from providing paid leave?

A: No. The FFCRA gives the Department of Labor the authority to exempt small businesses if the imposition of the requirements under the EPSLA or the EFMLEA would jeopardize the viability of the business as a going concern, however the FFCRA itself does not automatically exempt small businesses. 

4. Q: My company has under 50 employees total, how can I obtain an exemption from the Department of Labor?

A: This has not yet been addressed in the FFCRA. While the DOL guidance notes that employers should “document why your business with fewer than 50 employees meets the criteria…” no further information has been provided as of yet. We will continue to monitor this point and provide follow up guidance as it becomes available. 

5. Q: My company is anticipating furloughing or laying off employees, will the employees still be eligible for leave under EPSLA or EFMLEA?

A: Although the FFCRA does not speak to this scenario, it is presumed that if an employee is on leave without pay and thus not working, he or she will not be entitled to paid leave under the FFCRA. 

Under the EPSLA, paid sick leave is defined as leave “provided by an employer for use during an absence from employment for a reason described in any paragraph of section 2(a) [i.e., COVID-19 related illness’].”   As such, where the employee is already furloughed or laid off, their absence is not due to COVID-19 but to the furlough. 

While there is no similar definition provided under the EFMLEA, it is presumed that the same analysis would apply, e.g. is the employee is already furloughed or laid off, their absence is not due to a “…need related to a public health emergency...”.  

6. Q: Both the EFMLEA and the EPSLA appear to provide for leave with regards to the need to care for an employee’s son or daughter because his or her school has closed, or their childcare is unavailable. What is the difference between the two?

A: The qualifying reason for taking leave under the EFMLEA, as well as one of the reasons for taking leave under the EPSLA appear very similar with only minor noted differences. 

Under the EFMLEA, the employee may take leave if he or she is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age if the school or place or care has been closed, or the childcare provider is unavailable due to a public health emergency. The term ‘public health emergency’ means an emergency with respect to COVID-19 declared by a Federal, State, or local authority.  

Under the EPSLA, an employee may take leave if he or she is unable to work (or telework) due to a need for leave  because the employee is caring for a son or daughter if the school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions. 

There is one notable difference between the leaves: leave under the EFMLEA references a “public health emergency” as the reason for the school closure, or unavailability of childcare, while leave under the EPSLA states that leave is permitted if the school is closed, or the childcare is unavailable due to “COVID-19” precautions. In this regard, taking leave under the EPSLA requires a less stringent showing from the employee, as he or she does not need to establish a school closure or childcare unavailability due to declared state of emergency from federal, state, or local authorities. 

7. Q: My company employs temporary W-2 employees, are these employees entitled to paid leave under the FFCRA?

A: Yes. The FFCRA only distinguishes between full-time and part-time employees with regards to the amount of pay an employee may be entitled to. In addition, the DOL guidance notes that temporary employees should be included in determining the 500 employee threshold under the FFCRA. In that regard it is presumed that a temporary employee will be entitled to paid leave under the EPSLA immediately, as well as under the EFMLEA, so long as they have been employed for at least thirty (30) days.

8. Q: My company has over 500 employees total, however we are made up of several different enterprises, each of which do not have more than 500 employees.  Are we exempt from EPSLA or EFMLEA?

A: Maybe. With regards to leave under the EFMLEA and EPSLA guidance from the DOL suggests that the employee threshold determination normally used under the FMLA will apply here as well.  Normally, the legal entity which employs the employee is the employer under FMLA.  Applying that principal, a corporation is a single employer rather than its separate establishments or divisions.  Further, separate entities will be deemed to be parts of a single employer for purposes of FMLA if they meet the integrated employer test.  A determination of whether the integrated employer test is met involves consideration of factors such as common management, interrelation between operations, centralized control of labor relations and degree of common ownership/financial control.  

Emergency Paid Sick Leave Act:

1. Q:  My company already provides paid sick leave, can we require employees to utilize that leave as opposed to the leave provided under the EPSLEA?

A: No. Employers cannot require, as a condition of providing paid sick leave under the EPSLEA, that the employee use other paid leave provided by the employer before the employee uses the paid sick time under the EPSLEA. It does not matter how much paid sick time the employee may already be entitled to from the employer.

2. Q: Can an employee take paid leave under both the EPSLA and the EFMLEA?

A. Maybe. If the employee is taking leave under EPSLA for a qualifying reason that does not fall under EFMLEA and subsequently needs additional leave for a qualifying reason under the EFMLEA that does not fall under the EPSLA, it is likely that an employee will be entitled to leave under both provisions of the FFCRA and the leave will not run concurrently. Regardless, keep in mind that an employee is only entitled to up to a total of twelve weeks of paid leave under the FFCRA.

3. Q: Can short term disability off-set paid sick leave?

A: Maybe. If the reason for paid sick leave under the FFCRA also qualifies for short-term disability and the amount of wages paid under short-term disability is equal to or greater than what the employee is entitled to under the FFCRA, there does not appear to be an issue in allowing the offset. However, keep in mind that employees are entitled to EPSLA benefits immediately, thus any waiting period or other restriction imposed under a company’s short-term disability plan will need to be accounted for. 

4. Does EPSLA run concurrently with EFMLA?

A: Maybe. If the employee is eligible for leave under the EFMLA and the reason for EPSLA also qualifies for leave under the EFMLEA, it is likely that the two would run concurrently. However, if an employee has exhausted his or her EFMLEA or does not yet qualify, then the employee would only be eligible to take EPSLA and the leaves would not run concurrently. 

5. What notification can I require from an employee seeking to take leave under the EPSLA?

A: Currently the EPSLA does not address this question. While some of the qualifying reasons for leave under EPSLA will be easy to provide documentation for, i.e. a federal, state or local quarantine or isolation order related to COVID-19, or an employee who has a son or daughter whose school has closed due to COVID-19 related precautions, others will not. Specifically, it may be difficult for an employee to provide documentation in the event he or she is experiencing symptoms of COVID-19 and seeking a medical diagnosis, as not everyone is being provided access to testing and some medical facilities are telling patients with less severe symptoms to remain home. In this regard, we would advise either requesting documentation illustrating the qualifying reason but taking a flexible approach in the event an employee is not able to provide documentation, or advising that the company “reserves the right” to request documentation at a later date. Further, if you are preparing a standalone policy, we also recommend including language indicating that employees may be subject to disciplinary action, up to and including termination, in connection with abuse of the policy. 

Emergency Family and Medical Leave Expansion Act (“EFMLEA”)

1. Q: My company only has 20 employees in one location and no other employees within a 75 mile radius (although we have 60 employees total), can we qualify for a small business exemption from the EFMLEA?

A: No. The EFMLEA applies to all employers that employ fewer than 500 individuals. Under the EFMLEA, an eligible employee is an employee  “…who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested under section 102(a)(1)(F)”. There are no additional requirements. 

2. Q: An employee already exhausted his or her FMLA leave for the calendar year. Can they still receive paid leave under the EFMLEA for a qualifying reason under the FFCRA?

A. No. The EFMLEA provides additional qualifying reasons for leave under the FMLA. It does not expand the total amount of time an employee may take under the FMLA. 

3. Q: Will leave under the EFMLEA run concurrently with other paid leaves in my state?

A: Maybe. While this issue is not addressed in the FFCRA, the answer will most likely depend on the reason an employee is taking leave. If the employee takes leave under the EFMLEA because his or her child’s school is closed, this would likely not run concurrently with, for example the forthcoming D.C. Universal Paid Leave Amendment Act, since that is not a qualifying reason under the D.C. law. In addition, employers will need to consider whether an employee has met the eligibility requirements for any other state paid leave. If the employee is not eligible under the state paid leave, but is eligible under the EFMLEA, then it is unlikely that the leave would run concurrently. 

4. Q: Can employees substitute accrued PTO, or sick leave for the initial ten (10) days of unpaid leave under the EFMLEA?

A: Yes. 

5. What notification can I require from an employee seeking to take leave under the EFMLEA?

A: Currently the EFMLEA does not address this question, so it is assumed an employer’s ability to request documentation will remain the same as with the FMLA. Presumably it will be easier to provide documentation illustrating the need for leave under the EFMLEA than the EPSLA, since the leave must be due to a “public health emergency,” however we would still caution employers to take a flexible approach in the event an employee is not able to provide documentation, or advising that the company “reserves the right” to request documentation at a later date. Further, if you are preparing a standalone policy, we also recommend including language indicating that employees may be subject to disciplinary action, up to and including termination, in connection with abuse of the policy.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 85

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About this Author

Jennifer Budoff Employment Lawyer Mintz Levin
Associate

Jennifer provides clients with representation and counsel on a broad range of employment matters. She has significant experience defending employers in discrimination, retaliation, harassment, and wrongful termination claims in state and federal court, including the representation of employers in actions before Administrative Agencies.

In addition, Jennifer has substantial experience counseling management and human resource professionals on a broad range of workplace issues. In this regard, she regularly advises clients on best practices to...

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