November 23, 2020

Volume X, Number 328

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November 20, 2020

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Client Alert: Families First Coronavirus Response Act (FFCRA) and other COVID-19 Employment Issues

The Families First Coronavirus Response Act (FFCRA), which went into effect on April 1, 2020, and applies to employers with fewer than 500 employees, provides for certain leave for employees who are quarantined or sick with COVID-19, have to care for someone who is quarantined or sick with COVID-19, or have to care for children under the age of 18. One way to think of FFCRA is that it is merely extending the protections of the FMLA to employees who meet these additional qualifications. A Department of Labor summary of the law is available here.

If you have not already done so, you should be sure to notify your employees of their rights under the FFCRA using the required poster (even if they are working from home or have been furloughed), and if you are still open now you should put up the required poster at work. Notice of the poster may be sent to employees by regular mail or email.

The Department of Labor recently issued expanded Frequently Asked Questions about the FFCRA, which have clarified several areas where clients have had questions or concerns, as well as rules regarding the FFCRA.

Among the items clarified are:
1) Can furloughed employees get paid under the FFCRA?
2) What is the scope of the FFCRA eligibility?
3) What is the Small Employer exemption?
4) What documentation is needed if FFCRA leave is provided to employees?

1) Can furloughed employees get paid under the FFCRA?

No. Questions 23, 24, 26 and 27 clarify that if the employer sends an employee home and stops paying them due to lack of work or closure of the workplace due to government directive, the employee is not eligible for FFCRA payments. This is the case even if the leave is requested before the closure of the workplace. Question 25 also makes it clear that, if the employer closes the worksite while the employee is on FFCRA leave, the employee’s leave ends as of the date of the worksite closure.

2) What is the scope of the FFCRA eligibility?

The DOL FAQs make it clear that merely because the worksite is closed, either due to government directive (as in Massachusetts, closing all but essential businesses) or due to lack of work, that alone will not trigger the FFCRA. We had originally thought that the Governor’s order in Massachusetts would likely make employees who could not work from home, as a result of the order, subject to the FFCRA. However, the guidance in the FAQs suggests that the quarantine order for sick leave is for quarantine of the individual employee, and it would appear that the Governor’s order would not rise to the level of a quarantine order, even if your business is required to close since it is not essential. Leave to care for another who is quarantined, or to care for a child whose school or child care provider is closed due to reasons related to COVID-19, is, of course, broader and more employees may fall in that category.

3) What is the Small Employer exemption?

Questions 58 and 59 deal with certain exemptions from providing FFCRA leave for small employers (with under 50 employees by headcount, not by FTE) only if the employee needs to stay home to take care of their children due to daycare or school closures.

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  • 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;

  • 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

  • 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.

4) What documentation is needed if FFCRA leave is provided to employees?

Questions 15 and 16 cover the records an employee needs to provide the employer to obtain FFCRA coverage and the documentation needed by the employer to obtain the tax credit.

These are just a few of the key points from the updated DOL guidance. You should be sure to check the DOL website or consult with us to determine if there are any updates or changes to this guidance or the laws in general as they are evolving on seemingly a daily basis.

Other COVID-19 Employment Issues:

1) What should I do if I am an essential business and need to remain open?

With government restrictions tightening, if you are an essential business, you need to keep your workers coming to work. One of the helpful tips we received from a client is that you should provide essential workers with a letter explaining that they are essential workers, and tell them to leave it in their car or carry it with them as they commute to work. We can provide you with a sample letter if that would be helpful. It is of course also important to keep the employees who come to work safe by providing personal protection equipment, which may vary from workplace to workplace, but generally means access to masks, gloves, hand sanitizer and sanitizing wipes, especially if employees are sharing workstations. It’s important to also follow CDC and OSHA guidelines. It is also critical to have plans in place to address the issue of an employee or customer who has been in the workplace recently testing positive for COVID-19 and to communicate with employees while furloughed or otherwise on leave.

2) How can I conserve employment costs during the pandemic?

There are several cost-saving approaches available for employers to control their payroll during the pendency of this public health situation. These can include, without limitation, layoffs, full or partial furloughs, converting employees to hourly and limiting their time spent at work, and other steps. Many states have also altered their unemployment compensation program rules and requirements in light of the COVID-19 situation and such altered rules can provide coverage to employees who need to be laid off or, in some cases, have their hours reduced. These rules and requirements too, on changing regularly.

© 2020 SHERIN AND LODGEN LLPNational Law Review, Volume X, Number 102
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About this Author

Matthew Moschella, Sherin Law Firm, Employment Litigation Attorney
Partner

Matthew C. Moschella is a partner in the firm’s Litigation and Employment Departments. In addition to representing clients in all types of civil litigation, he is a member of the firm’s Professional Liability Group. Matt counsels clients in various industries on employment risk management issues, including employment contracts, employee handbooks, non-compete, non-solicitation, and non-disclosure agreements.

Matt gained valuable experience after law school as a law clerk to the Hon. Judith Gail Dein, U.S. Magistrate Judge, U.S. District Court...

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C. Forbes Sargent III is chair of the firm’s Business Law Department. His practice includes general representation of emerging and established businesses in all areas, including business formation, bank and venture capital financing, mergers and acquisitions, joint ventures, and sales and distribution contracts. He represents clients in shareholder issues, including buy-sell agreements and shareholder disputes, with an emphasis on closely held businesses.

With a clientele that includes a number of technology companies, Forbes practices...

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