Lawyers and law firms have done a great job providing information and analysis about the Families First Coronavirus Relief Act (FFCRA). I’m especially proud of our team at Fredrikson & Byron for their heroic efforts putting together the firm’s Coronavirus Resource Center. Despite the flood of information, however, many practical questions about day-to-day compliance and implementation remain. While the Department of Labor Guidance and other publications have addressed most of the “big” questions, clients have asked many others for which there is not much published guidance, and in some cases no easy answer. In this post we give our best answers, based upon what we know today, to ten of those questions:
- How much notice does an employee have to give about a request for emergency paid sick or family leave?
The law tells employers they have to post a notice of rights in the workplace but says nothing about what notice an employee who is eligible for paid sick or family leave must give to the employer. We think employers should rely on the regular FMLA regulations, which require employees to follow the employer’s regular call-in procedure to report an absence if it is unforeseeable. If foreseeable, the employee should tell the employer as soon as they can once the need for leave is known.
- Do I have the right to ask an employee requesting paid leave for documentation about the reason for the leave?
Yes. While full-blown FMLA certification may not be necessary, you are entitled to some evidence the employee qualifies for the paid leave, such as a doctor’s note or note from a daycare that is closed. If information about school closures is widely publicized (which it probably is), that is adequate. If you are inclined to give employees the benefit of the doubt and don’t ask for documentation right away, you will still need it to claim the tax credits.
- My employee wants paid leave because her child’s school is closed, but she has a stay-at-home spouse. Can I deny paid leave because someone else is available to care for the child?
That’s a tough one. We think the employer is entitled to ask questions about whether leave is truly essential to care for their children home from school. That said, we advise caution about delving too deeply into the family’s personal situation and limit the questions to whether there are alternatives for child-care, or whether the employee can telework while at home. Whether an employee whose child’s school or daycare has closed is really “unable to work” involves subjective judgments, and it is generally better to give the employee the benefit of the doubt that to risk invading their privacy too much.
- Some employees claim they are afraid coming to work will expose them to COVID-19, but I think the real reason is they want to get unemployment because it will pay more than they earn working. Can I successfully contest their unemployment? What can I do to get my employees to show up?
In Iowa and many other states, the agencies that run the unemployment system will not delve into whether an employee’s expressed fear of contagion is legitimate or driven by ulterior motives. Thus, it is likely such an employee will qualify for unemployment benefits.
One potential solution is to pay employees who show up to work during this crisis premium pay, such as a temporary wage increase or a bonus for attendance at the end of a certain period. This is a costly cure, but maybe better than a temporary shutdown.
Even in an at-will state like Iowa, be careful about terminating employees who don’t show up for work during this crisis because of potential workplace exposure to COVID-19. Iowa recognizes a claim for wrongful discharge if the employee is terminated for seeking unemployment compensation, as well as for employees who complain about unsafe workplaces.
- If everyone who is eligible for paid emergency family leave takes it, I won’t have enough employees left to run my business; is there any relief in this situation?
There might be, if you have fewer than 50 employees. Small employers are exempt from FFCRA expanded paid family leave requirements if you satisfy one of the following conditions:
- Providing paid sick and expanded family leave would cause expenses to exceed revenues and result in the business ceasing to operate;
- 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 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.
- What if an employee has already used some FMLA leave; are they still entitled to 12 weeks of emergency family leave?
No. Although FFRCA changed some of the eligibility requirements for FMLA leave (e.g., number of employees, amount of time worked), it did not add more covered weeks to the twelve already available. As such, if an employee eligible for paid sick or paid emergency family leave has already used FMLA leave during the last year, they will have fewer hours available for paid leave under FFCRA.
- How does paid sick or emergency family leave work with exempt employees?
Employers typically must pay an exempt employee their entire weekly salary, even if the employee does not work all scheduled hours during the week. One exception is FMLA leave, which can be unpaid even for exempt employees, and even when used intermittently. We believe the principle that exempt employees are not entitled to be paid for FMLA hours applies to emergency paid sick and family leave under FFCRA. The only difference is that, instead of FMLA hours being unpaid, they are paid at 2/3 the employee’s regular rate. An exempt employee’s salary can be converted to an hourly rate for this purpose.
- My employee needs to care for a child whose school has closed because of COVID-19, but still wants to work because she needs to earn more than 2/3 of her pay; is that allowed?
Yes. Emergency paid sick and family leave may be used intermittently. Work hours are paid at the regular rate, and emergency paid sick or family leave is paid at 2/3 the regular rate. To make up the difference between 2/3 pay for emergency paid sick or family leave and regular pay, the employee may use accrued vacation, sick, or other paid time off.
- If I must wait for the tax-credits I won’t have the cash flow to pay for the leave; what am I supposed to do?
The IRS and DOL announced a plan that allows employers to immediately obtain the credit by retaining the payroll taxes withheld from employee’s checks, and the employer’s share of Social Security and Medicare, instead of remitting the taxes to the government. Details are here.
- What if I make a mistake in administering the paid leave?
The DOL announced it will not bring enforcement actions against an employer for violations of the FFCRA that occur within the first 30 days. To avoid such an enforcement action, the violation cannot be willful, and the employer must have acted reasonably and in good faith, including remedying any violations by making affected employees whole, and committing in writing to not violate the Act in the future.
Note that the DOL measures 30 days from the date the law was enacted (March 18), not the date it is effective (April 1). So, employers have until April 17 to take advantage of this safe-harbor.