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DOL Issues Guidance on Emergency Paid Sick Leave and Paid FMLA Under Families First Coronavirus Response Act

On Behalf of | Apr 3, 2020 |

The DOL has issued a series of FAQs that provide guidance for employers administering the Emergency Paid Sick Leave (“ESPL”) and the Emergency Family and Medical Leave Act (“EFMLA”) under the Families First Coronavirus Response Act (“FFCRA”).

Background.  As of April 1, 2020, FFCRA provides relief to American workers in the wake of the coronavirus pandemic. On March 24, 2020, the DOL issued FAQs that focus on topics that include how to make the “500-employee” threshold determination, and leave calculations. The DOL subsequently released a set of additional FAQs (published March 26, 2020, and March 28, 2020, respectively) that address practical issues for employers administering ESPL and EFMLA leave under the FFCRA.

DOL FAQs: The following are highlights from some of the FAQs:

  • Covered Employer (Q&As #39): Employers with fewer than 500 employees are, in most cases, “covered employers” that are required to provide ESPL and EFMLA.

Definition of “500 Employees” (Q&As #2): An employer generally has fewer than 500 employees if, at the time of an employee’s request for FFCRA leave, the employer has fewer than 500 full-time and part-time employees employed within the United States.

Determination. In making this determination, employers should include: (1) employees on leave; (2) temporary employees jointly-employed by another employer (regardless of which employer’s payroll the jointly-employed employees are listed); and (3) day laborers provided by a temporary agency. Workers who are considered independent contractors under the Fair Labor Standards Act (“FLSA”) are not counted as employees for purposes of the 500-employee threshold.

Corporations. Corporations are generally considered to be a single employer whose employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under FLSA.

“Integrated Employer Test.” If two or more employers are considered “integrated employers” under FMLA, then the employees of all entities making up the integrated employer must be counted in determining employer coverage for purposes of paid sick leave and expanded family and medical leave.

NOTE: As explained below (see “Small Business Exemption”), certain employers with fewer than 50 employees may be exempt from some FFCRA requirements.

  • Employer Tax Credits and Required Documentation (Q&As #15-16): Private sector employers that provide leave to their employees under FFCRA are eligible for reimbursement of the costs they incur from providing such leave through refundable tax credits.

If an employee requests paid leave under FFCRA, the employer must require the employee to provide appropriate documentation, including:

– the qualifying reason for the leave:

– a statement that the employee is unable to work or telework for that reason; and

– the dates for which leave is requested.

Employers that intend to claim this tax credit must retain “appropriate documentation” in their records.

NOTE: Employers do not have to provide FFCRA paid leave to employees who do not provide appropriate documentation to support their claim for the leave.

Appropriate documentation includes:

    • A copy of the federal, state, or local quarantine/isolation order related to COVID-19.
    • Written documentation from a healthcare provider advising the employee to self-quarantine due to concerns over COVID-19.
    • A notice from a school, place of care or child care provider that shows the school or place of care is closed due to COVID-19.
  • Definition of “Telework” (Q&As #17-19): “Telework” is work performed from home or a location other than an employee’s normal workspace.  An employee is unable to work or telework if the employer has work and one of the COVID-19 qualifying reasons prevents the employee from working either under normal or alternative circumstances.

If an employee is unable to telework because of one of the qualifying reasons for ESPL or because the employee needs to care for a child whose school or place of care is closed due to COVID-19 reasons, the employee is entitled to ESPL and EFMLA.

  • Intermittent Leave (Q&As # 20-22): The FAQs provide guidance for intermittent leave under the following two work situations: (1) teleworking; and (2) working onsite.
    • Onsite Employees: Employees working onsite who qualify for ESPL leave for any reason other than to care for a child whose school or daycare is closed must take paid leave continuously, and in full day increments until paid leave is exhausted or the qualifying reason ends.

Employees working onsite may take EFMLA leave intermittently.

NOTE: EFMLA leave is only available to employees to care for a child whose school or daycare is closed.

    • Teleworking Employees: Employers may allow employees who are teleworking to take intermittent leave in increments of less than a full day. Employers that allow this must: (1) carefully track when exempt employees are working and when they are using ESPL or EFMLA; and (2) ensure exempt employees do not drop below a weekly threshold salary of $684.
  • Closed Worksites, Furloughs (Q&As # 23-31): If an employer’s worksite closes, employees cannot take either ESPL or EFMLA leave. Employees who are sent home and stop receiving pay because the employer does not have work for them can file a claim for unemployment insurance benefits.

If an employer closes a worksite while an employee is on ESPL or EFMLA leave, the employer is only required to pay for leave taken before the closure. If an employer remains open but places its employees on furlough due to lack of work, furloughed employees are not eligible for paid leave under either ESPL or EFMLA.

  • Supplementing FFCRA Paid Leave with PTO (Q&As # 32-34): Employers may allow, but not require, employees to supplement any lost pay they receive under either ESPL or EFMLA, with unrelated leave entitlements.

NOTE: Employers that agree to allow employees to supplement any lost pay cannot claim a tax credit for the supplemental amounts.

  • Multiemployer Collective Bargaining Agreements (“CBAs”) (Q&As # 35-37): Employers may satisfy their legal obligations under both ESPL and EFMLA by making appropriate contributions under a fund, plan or other program based on paid leave owed to each employee, provided that doing so is consistent with its bargaining obligations and CBAs.
  •  Healthcare Providers and Emergency Responders (Q&As #36, 56-57) Employers of healthcare providers and emergency responders are not required to pay ESPL or allow EFMLA leave.
  •  Small Business Exemption (Q&As # 58-59): “Small” employers are exempt from the paid leave requirements of EFMLA if they:
    • Employ fewer than 50 employees;
    • An employee requests leave because a child’s school or place of care is closed, or child care is unavailable due to COVID-19 reasons; and
    • An authorized officer of the employer has determined that one of the following applies:
      • The provision of paid leave would result in “business expenses and financial obligations exceeding available revenues” that would cause the employer to cease operating at minimal capacity;
      • The absence of the employee requesting leave would “entail substantial risk to the financial health or operational capabilities” of the business due to the employee’s specialized skills, knowledge or responsibilities; or
      • The employee’s labor or services “are needed for the small business to operate at minimal capacity” and a replacement to perform such work cannot be found.

NOTE: Small business are not exempt from providing paid ESPL for reasons other than for taking care of a child whose school or place of care is closed, or daycare is unavailable due to COVID-19 reasons.

The FAQs are available at: