The Department of Labor answered more questions expanding its Q&As on the Families First Coronavirus Response Act (FFCRA), here.
What documents may be required for leave for closure of a school or place of care?
Website notice, letter from the childcare provider, government notice closing the school, or newspaper article
What if the employee refuses to telework?
The paid sick leave and expanded FMLA leave are not available if telework is available. If the employee is unable to telework because of childcare responsibilities or his/her own illness, the employee can take the sick and/or expanded FMLA leave from the responsibilities of telework.
As an alternative, an employer could permit intermittent telework and use of sick or family paid leave. Intermittent leave related to COVID-19 illness, quarantine, or self-imposed quarantine should not be permitted for work at the usual work site, due to concerns of spreading coronavirus to others in the workplace.
What about employees already laid off or furloughed before April 1st?
Their only recourse is unemployment.
What if the employer closes the worksite or furloughs employees after April 1st?
Sick and family leave is no longer available, even to those employees already on the paid leave, once the workplace closes or the employee is furloughed or laid off. Unemployment becomes the sole method for replacing wages at the point the workplace closes, or the employees are furloughed or laid off. Any paid leave used prior to the layoff, closure, or furlough must be paid.
What if the employer reduces scheduled hours?
Sick or family leave may not be taken to compensate for lost hours.
If the employee cannot work full hours, but full hours are available, sick or family time may be used on an intermittent basis with employer consent.
Can an employee supplement paid sick or expanded FMLA with employer-provided paid leave?
Yes, if an employee is on paid leave at 2/3 pay, he/she may supplement with existing paid leave (vacation, PTO, personal, or sick pay) to receive full pay. In contrast, an employer cannot force an employee to supplement his/her earnings with existing paid leave. In addition, an employer cannot claim a tax credit against the portion of earnings that was supplemented through existing employer-provided paid leave.
UPDATED 4/2: Employees using 10 weeks of FMLA under the FFCRA may be required to exhaust paid time off to supplement the 1/3 unpaid time.
What are the requirements for the healthcare and first responder exemption?
Employers may exempt first responders and healthcare employees on a case-by-case basis. A “health care provider” is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. The exemption includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.
What are the requirements for the small business exemption?
An employer, including a religious or nonprofit organization, with fewer than 50 employees 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 FMLA 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 FMLA would entail a substantial risk to the financial health or operational capabilities of the small business because of the employee’s 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 FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.
Notably, this exemption is only an exemption from paid leave for childcare or school closure or unavailability. The sick pay for other reasons must be provided, without exception.
What about prior FMLA use?
UPDATED 4/2/20: COVID-19 FMLA will count against FMLA for other reasons for the next 12 months for that employee. However, if the employee has already exhausted available FMLA, they are still elgibile for the full 10 weeks of FFCRA FMLA.
Please note that this new COVID-19 paid sick and family leave takes effect on April 1st and that there are legal requirements. You are encouraged to consult your lawyer for compliance information.