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The U.S. Department of Labor (“DOL”) has issued guidance, FAQs and a poster to assist employers implementing the Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides for paid sick leave (“Sick Leave”) under the Emergency Paid Sick Leave Act (“Sick Leave Act”) and paid family leave (“Family Leave”) under the Emergency Family and Medical Leave Act (“Family Leave”) for employees impacted by COVID-19. Many of our clients have already had questions about the FFCRA, so for your benefit, we have summarized some of the more significant DOL guidance in a question and answer format below. For specific questions on how the new laws impact your business, please call Michael Adler at 310-540-2000×274, or send me an e-mail at meadler@graylawinc.com. 

  1. What is the effective date of FFCRA?

The paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. The law is not retroactive to its passage date of March 18, 2020.

 

  1. Are employers required to notify employees of their rights under FFCRA?

Yes. Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. An employer may satisfy this requirement by e-mailing or direct mailing the notice to employees or posting this notice on an employee information internal or external website.

 

  1. Does Family Leave and Sick Leave apply to private-sector employers with 500 or more employees?

No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

 

  1. For employers with fewer than 50 employees, if providing childcare-related Sick Leave or expanded Family Leave would jeopardize the viability of the business as a going concern, how does the employer take advantage of the small business exemption?

The employer should document why their business meets the criteria set forth by the DOL, which will be addressed in more detail in forthcoming regulations.

 

  1. When calculating pay due to employees, must overtime hours be included?

Yes and no. The Family Leave Act requires employers to pay an employee for hours the employee would have usually worked, even if that is more than 40 hours in a week.

 There is an 80-hour cap on Sick Leave. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid Sick Leave in the first week and 30 hours of paid Sick Leave in the second week. However, the total number of hours paid under the Sick Leave Act is capped at 80.

 

  1. May an employee take 80 hours of paid Sick Leave for self-quarantine and then another amount of paid Sick Leave for another reason covered under the Sick Leave Act?

No. Employees may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid Sick Leave for any combination of qualifying reasons.

 

  1. Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid is Family Leave under the Family Leave Act, when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons.

 

  1. Can an employer deny additional Sick Leave if the employer already paid the employee for a reason identified in the Sick Leave Act prior April 1, 2020?

No. The Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

 

  1. What records do employers need to retain when an employee uses Sick Leave or Family Leave?

If an employee takes Sick Leave, the employee is required to provide the employer with appropriate documentation in support of the reason for the leave, including the employee’s name, qualifying reason for requesting leave, a statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave is necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who advised the quarantine.

 If an employee takes Family Leave to care for his or her child whose school or place of care is closed or childcare provider is unavailable due to COVID-19, the employee is required to provide the employer with appropriate documentation in support of such leave. 

Employers should consult IRS applicable forms, instructions, and information for the procedures to claim a tax credit, including any supporting documentation to retain.

 

  1. When is an employee allowed to telework under the FFCRA?

An employee may telework when their employer permits or allows them to perform work while they are at home or a location other than their usual workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

 

  1. What does it mean to be unable to work, including telework for COVID-19 related reasons?

An employee is unable to work if an employer has work for them and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents them from being able to perform that work, either under normal circumstances at their normal worksite or utilizing telework.

 

  1. May the employee intermittently take Sick Leave or Family Leave while teleworking?

Yes, if an employer allows it and if the employee is unable to telework their normal schedule of hours due to one of the qualifying reasons in the Sick Leave Act. In that situation, the parties may agree that the employee may take paid Sick Leave intermittently while teleworking.

Similarly, if an employee is prevented from teleworking their normal schedule of hours because they need to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the parties may agree that the employee can intermittently take Family Leave while teleworking.

 Employers can let employees take intermittent leave in any increment. For example, if the parties agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

 

  1. If the employer closed the employee’s worksite before April 1, 2020, can the employee still get Sick Leave or Family Leave?  

No. If, prior to the FFCRA’s effective date, the employer sent home and stopped paying the employee because it does not have work for the employee to do, they will not get Sick Leave or Family Leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it is required to close under a Federal, State, or local directive.

 

  1. If the employer closes the employee’s worksite on or after April 1, 2020, but before the employee starts leave, does the employee get paid Sick Leave and/or Family Leave?

No. If the employer closes after April 1, 2020, (even if the employee requested leave before the closure), the employee will not get paid Sick Leave or Family Leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it was required to close under a Federal, State, or local directive.

 

  1. If the employer closes the worksite while employees are on paid Sick Leave or Family Leave, what happens?

If an employer closes the worksite, the employer must pay for any paid Sick Leave or Family Leave an employee used before the employer closed.

 

  1. If the employer is open but furloughs an employee after April 1, 2020, is the employee entitled to paid Sick Leave or Family Leave?

No. If an employer furloughs an employee because it does not have enough work or business, the employee is not entitled to then take paid Sick Leave or Family Leave. However, they may be eligible for unemployment insurance benefits.

 

  1. If an employer reduces an employee’s scheduled work hours, can the employee use paid Sick Leave or Family Leave for the hours they are no longer scheduled to work? 

No. If the employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee may not use paid Sick Leave or Family Leave for hours they are no longer scheduled to work. This is because they are not prevented from working those hours due to a COVID-19 qualifying reason, even if their reduction in hours was somehow related to COVID-19.

 

  1. May an employer supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under the employer’s paid leave policy?

If an employee chooses to use existing leave through their employer, then yes; otherwise, no. Paid Sick Leave and Family Leave is in addition to employees’ preexisting leave entitlements. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave to supplement the amount they receive from paid Sick Leave or Family Leave, up to the employee’s regular earnings.

 However, an employer is not required to permit an employee to use existing paid leave to supplement the amount the employee receives from paid Sick Leave or Family Leave.

 

  1. May employers require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave the employee may have under the employer’s paid leave policy?

No. Only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from the employer’s paid leave policy to supplement the amount the employee receives from paid Sick Leave or Family Leave.

 

  1. If an employer wants to pay employees more than they are entitled to under Sick Leave or Family Leave, can the employer claim a tax credit for the entire amount paid to them?

No, an employer may not claim, and will not receive a tax credit for, such supplemental amounts paid to an employee.

Stay Safe and Healthy,

 

Michael E. Adler

GrayLaw Group, Inc.
21515 Hawthorne Blvd. Suite 450
Torrance, CA 90503
Tel: (310) 540-2000×274 / Fax: (818) 912-6504