Additional Employment FAQs Under FFCRA

COVID-19 Resources Labor & Employment

As discussed in Wyrick Robbins’ first FAQ on the Families First Coronavirus Response Act (“FFCRA”), President Trump signed the FFCRA into law on March 18, 2020. Since that time, the United States Department of Labor (the “DOL”) issued a temporary rule regarding FFCRA on April 1, 2020, as well as three separate FAQs on the topic. This FAQ supplements our prior FAQ with information learned from the DOL through these additional sources.

Our prior alert referred to the two types of leave available under the FFCRA as “emergency paid sick leave” and “public health emergency leave.”  The DOL is now using the terms “paid sick leave” and “expanded family and medical leave,” respectively, and this FAQ follows the DOL’s terminology.

Q: Is a state or federal “shelter in place” or “stay at home” order (such as Governor Cooper’s recent Executive Order in North Carolina) a “Federal, State or local quarantine or isolation order” that would trigger an employee’s right to paid sick leave?
A: The DOL has made clear that a “Federal, State, or local quarantine or isolation order” qualifying an employee for paid sick leave includes a government-issued shelter-in-place or stay-at-home order, provided that the order causes the employee to be unable to work even though his or her employer has work that the employee could perform but for the order.  If the employer is open and permitted to operate as an essential business, and work is available for the employee, and the employee decides to stay at home due to a shelter in place or stay at home order, the employee would not be eligible for paid sick leave.  Similarly, an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. In that case, the employee’s inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his or her place of employment.

Q: Is intermittent leave permitted or required for either paid sick leave or expanded family and medical leave under the FFCRA?
A: There is a difference between employees who are working at the employer’s place of business and those who are teleworking. 

For an employee working at the employer’s place of business, intermittent leave is ONLY allowed if (1) the employer and the employee agree, AND (2) the employee cannot report to work (or telework) for childcare reasons.  Intermittent leave is not permitted for any other reason. 

If the employee is teleworking or normally works from home, the employee may take leave on an intermittent basis if the employer and employee agree.  In this case, intermittent leave may be taken for any qualifying reason, and in any agreed increment of time (but only when the employee is unavailable to telework because of a COVID-19 related reason).

Q: Will an employee qualify for leave for a COVID-19 related reason if he or she has already used some or all of his or her available leave under the Family and Medical Leave Act (FMLA)?
A: Eligible employees are entitled to paid sick leave regardless of how much leave they have taken under the FMLA.  However, if the employee’s employer was covered by the FMLA prior to April 1, 2020, the employee’s eligibility for expanded family and medical leave depends on how much FMLA leave the employee has already taken. Employees may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during the employer’s defined 12‑month “leave period.”  An employee who has taken some, but not all, 12 workweeks of his or her leave under FMLA during the current leave period may take the remaining portion of leave available as expanded family and medical leave.  If an employee has already taken 12 workweeks of FMLA leave during this 12-month period, he or she may not take additional expanded family and medical leave.

Additionally, employees are limited to a total of twelve weeks of expanded family and medical leave, even if the applicable time period (April 1 to December 31, 2020) spans two twelve-month leave periods under the FMLA.

Q: May an employer require employees to take paid leave they may have under my existing paid leave policy concurrently with expanded family and medical leave?
A: Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave, an employer may require that an employee take concurrently for the same hours expanded family and medical leave and existing leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if the employee (or a covered family member) is not ill.

Under such circumstances, the employer must pay the employee the full amount to which he or she is entitled under the existing paid leave policy for the period of leave taken.  If the employee exhausts all preexisting paid vacation, personal, medical, or sick leave, the employer would need to pay the employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate.

Q: If an employer pays its employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can the employer claim a tax credit for the entire amount paid to them?
A: No.  While employers may pay their employees in excess of FFCRA requirements, they cannot claim, and will not receive, tax credit for those amounts in excess of the FFCRA’s statutory limits. 

Q: Must employers post an explanation of employees’ rights under the FFCRA?  If so, how should they do so and where can the poster be found?
A: Employers are required to post a description of employees’ rights under the FFCRA.  This posting may be posted in a conspicuous place on its premises (which is similar to comparable employer posting obligations under other federal and state laws).  Recognizing that many employees are working from home during the pandemic, the DOL also made clear that employers could meet this obligation by emailing or mailing this notice to employees or by posting the notice on an internal or external website of the company. This poster may be found on the DOL’s website at the following link: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

Q: How do employers apply for the small business exemption?
A: The DOL has stated that a small employer may be exempt from the requirement to provide paid sick leave and expanded family and medical leave under the FFCRA when:

(1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;

(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or

(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose childcare provider is unavailable, the small employer must document the facts and circumstances that meet the criteria to justify such denial.

The employer is not required to send such material or documentation to the DOL, but rather should retain such records for its own files.

Q: What documentation must be provided by the employee and kept by the employer in order to receive the tax credit? 
A: For expanded family and medical leave, the written notice the employee provides to request leave must include:

• The employee’s name;
• The date or dates for which leave is requested;
• A statement of the COVID-19-related reason the employee is requesting leave and written support for such reason;
• A statement that the employee is unable to work, including by means of telework, for such reason;
• The name and age of the child (or children) to be cared for;
• The name of the school that has closed or place of care that is unavailable;
• A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave; and
• With respect to the employee’s inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care and a brief description of such circumstances.

For paid sick leave, the written notice the employee provides to request leave must include:

• The employee’s name;
• The date or dates for which leave is requested;
• A statement of the COVID-19-related reason the employee is requesting leave and written support for such reason; and
• A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

• The name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine; and,
• If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or childcare provider unavailability, the statement from the employee should include:

• The name and age of the child (or children) to be cared for,
• The name of the school that has closed or place of care that is unavailable, and
• A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave; and
• With respect to the employee’s inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care and a brief description of such circumstances.