The Families First Coronavirus Response Act (“the Act”) provides for a paid sick leave of up to 80 hours, as well as extended Family Medical Leave (“extended FML”) for up to 12 weeks, with 10 weeks paid for most employees.  We previously provided you with information about these provisions.  Please consult our earlier update for the basics of the Act.

The Department of Labor now has issued guidance as well as temporary regulations that are helpful in clarifying some of the questions raised under the Act.  The guidance was issued on March 28, 2020, and is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. The temporary regulations were issued on April 1, 2020, and are available at https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act.

Here, we hit the highlights of the guidance and regulations to answer some of the questions raised by the Act.

Employee Entitlements

Full-time employees (those working at least 40 hours per week) are eligible for no more than 80 hours of paid sick leave for qualifying reasons, payable based on the employee’s regular work schedule.  Thus, an employee who would have been scheduled to work 50 hours per week for the two-week period of paid sick leave would be paid 50 hours in the first week and 30 hours in the second week.  If an employee has taken all 80 hours of leave, and later has another qualifying event, the employee is not entitled to any additional paid sick leave.

Part-time employees taking paid sick leave are paid for the hours for which they would have been scheduled, and are entitled to the number of hours they would normally work during a two-week period.  For example, a part-time employee regularly working 25 hours per week would be entitled to a total of 50 hours of paid sick leave.  If a part-time employee does not have a regular work schedule, the guidance and regulations outline how the employee’s entitlement should be calculated.

Employees are entitled to up to 12 weeks of leave under the extended FML portion of the Act, paid at two-thirds of the employee’s regular rate of pay for up to ten weeks.  The first two weeks is unpaid, and will run concurrently with paid sick leave.  Pay entitlements are calculated the same as under the paid sick leave portions of the Act, as outlined above.  Employers who have 50 or more employees and therefore must provide leave under the Family and Medical Leave Act (“FMLA”) should note that employees are entitled only to a combined total of 12 weeks of FMLA and extended FML leave.  Therefore, if an employee requesting extended FML leave already has taken six weeks of FMLA leave in the employer’s calculation year, the employee would only be entitled to take up to six weeks of extended FML leave.  If, however, an employer’s leave year begins, for example, on July 1, and an employee has taken seven weeks of FMLA leave prior to July 1, he or she would be entitled only to an additional five weeks of extended FML leave under the Act prior to the Act’s sunset date of December 31, 2020.

If an employee uses paid leave for a reason other than to care for a son or daughter who is home because of a school or daycare closure due to COVID-19, and later needs to use extended FML leave, the employee can opt to take – but the employer cannot force the employee to take – any vacation, sick or other time the employee has accrued to cover the first two weeks of unpaid leave.

Both paid sick leave and extended FML leave can be taken intermittently in some circumstances if the employer and employee agree.  Such agreements do not have to be in writing, but it is recommended.  The Act does not require employers to agree to allow either leave to be taken intermittently.  If an employee does not have the ability to telework and must report to the employer’s facility for work, the employee may work intermittently only if the employee is needed to care for a son or a daughter who is home from school or daycare because of the closure of the school or daycare due to COVID-19.

Both paid sick leave and extended FML leave are available only if the employee is not able to work because of the qualifying reason.  If the employer simply does not have work, the employee is not entitled to either leave.  Similarly, laid-off employees are not entitled to obtain either paid leave under the Act.

Qualifying Reasons For Leave

The regulations clarify that, to the extent an employee takes paid sick leave or extended FML leave in order to care for a son or daughter whose school or child care provider is closed due to COVID-19, a child care provider includes uncompensated or unlicensed providers, as long as the provider is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.  The terms son or daughter in the Act include a step or foster child, or a child for whom the employee stands in the place of a parent.  These terms include sons or daughters under age 18, and those 18 or older who are incapable of self-care because of a mental or physical disability.

Paid leave and FML leave may be taken to care for a son or daughter out of school or daycare only if no other suitable person is available to care for the son or daughter during the period of the leave.

Fair Labor Standards Act

The regulations specify that an employee’s exempt status under the Fair Labor Standards Act (“FLSA”) is not affected by the employee taking paid leave under the Act.

Notice

An employer may require an employee to follow reasonable notice procedures after the first workday (or portion thereof) for which an employee takes paid sick leave for any reason other than to care for a son or daughter whose school or daycare is closed. In the latter case, notice should be provided as soon as practicable.  Whether a procedure is reasonable will be determined under the facts and circumstances of each particular case, and the employer’s preexisting notice procedures generally will be deemed reasonable.  Employers cannot require documentation in addition to the documentation needed to show that an employee qualifies for paid leave or extended FML leave.

Return To Position

Employees taking either paid sick leave or extended FML leave generally must be returned to the same or similar position after the leave; however, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of the leave. The employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

For leave taken under the extended FML, an employer may deny job restoration to certain key employees, if necessary to prevent substantial and grievous economic injury to the operations of the employer.

An employer who employs fewer than 25 eligible employees may deny job restoration to an eligible employee who has taken extended FML leave if all four of the following conditions exist: (1) The eligible employee took leave for the reason leave may be taken under the Act for extended FML leave; (2) The position held by the eligible employee when the leave began no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave; (3) The employer has made reasonable efforts to restore the eligible employee to a position equivalent to the position the eligible employee held when the leave began, with equivalent employment benefits, pay, and other terms and conditions of employment; and (4) Where the reasonable efforts of the employer to restore the eligible employee to an equivalent position have failed, the employer must make reasonable efforts to contact the eligible employee during a one-year period, if an equivalent position becomes available. The one-year period begins on the earlier of the date the leave related to a public health emergency concludes or the date twelve weeks after the eligible employee’s leave began.

Documentation

Employees are required to provide documentation for any leave requested, and employers must obtain and retain the required documentation in order to be eligible for the tax credits provided to pay for leaves under the Act. The employee must provide documentation containing the following information prior to taking paid sick leave or FML leave under the Act: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the employee is unable to work because of the qualified reason for leave.

In addition, to take paid sick leave because the employee is under a government order of quarantine or isolation, an employee must additionally provide the employer with the name of the government entity that issued the quarantine or isolation order.

To take paid sick leave because the employee has been advised to self-quarantine due to concerns related to COVID-19, an employee must additionally provide the employer with the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19.

To take paid sick leave because the employee is needed to care for an individual because that individual is under  a quarantine or isolation order or has been advised to self-quarantine, an employee must additionally provide the employer with either: (1) The name of the government entity that issued the quarantine or isolation order to which the individual being care for is subject; or (2) The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.

To take paid sick leave or expanded FML leave because of a need to care for a son or daughter at home because of the closure of a school or daycare due to COVID-19, an employee must additionally provide: (1) The name of the son or daughter being cared for; (2) The name of the school, place of care, or child care provider that has closed or become unavailable; and (3) A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes the leave.

The employer may also request an employee to provide such additional material as needed for the employer to support a request for tax credits pursuant to the Act. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

The IRS has stated that, in addition to any documentation provided by the employee, employers must retain Forms 941, Employer’s Quarterly Federal Tax Return, and 7200, Advance of Employer Credits Due To COVID-19, and any other applicable filings made to the IRS requesting the credit.  For more information, see https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.

Health Care Exemption

The Act provides that employers may exempt health care providers and emergency responders from obtaining the leaves provided under the Act.  The guidance and regulations state that the exemption for health care providers includes any employee who is 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.  This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”

An emergency responder, for purposes of the Act, is “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of COVID-19 patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. It also includes others so designated by state or federal government.”

The exemption for health care providers and emergency responders extends only to the leaves provided under the Act, and not to other leaves to which these employees may be entitled under the law or the employer’s policies.

Small Business Exemption

The Act provides a partial exemption under certain circumstances to small businesses with fewer than 50 employees.  To obtain the exemption, an authorized officer of the business must determine at least one of the following: (1) Providing paid sick leave time would exceed available business revenue and cause the business to cease operating at a minimal capacity; or (2) The absence of the particular employee(s) would entail a substantial risk to the financial health or operating capabilities of the business, because of the specialized skill, knowledge of the business, or responsibilities; or (3) There are not sufficient workers able, willing, qualified and available when and where needed to perform the labor or services provided by the employee(s) requesting the leave, and this labor or these services are needed for the business to operate at minimum capacity.

To elect this small business exemption, the employer must document that the above determination has been made, and retain these documents.  The documentation should not be sent to the Department of Labor.  Even if a small employer chooses the exemption, it still must post the required Families First Notice.

What Does This Mean For You?
The Families First Act can be complicated, and has many nuances that employers need to know.  The Employment and Labor group at Blakinger Thomas is here to help.  If you have questions about this or any other employment or labor law questions, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237, Grace C. Nguyen Bond at gcnb@blakingerthomas.com or (717) 509-7226, or Jill M. Laskowitz at jml@blakingerthomas.com or (717) 509-7261.

**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist.**