Dept. of Labor Updates FFCRA Questions and Answers – Intermittent Leave, Furlough, and Length of Leave

The U.S. Department of Labor (“DOL”) continues to update its compliance assistance for the Families First Coronavirus Response Act (“FFCRA”), in the form of “Questions and Answers.”  The DOL posted a temporary rule issuing regulations pursuant to the FFCRA on April 1, 2020; while we are digesting the temporary rule and preparing a forthcoming advisory, we wanted to highlight some of the important insights of the updated FAQs. The DOL published its initial guidance on March 24, 2020, summarized in a previous post, covering the FFCRA’s paid sick and paid family leave requirements as well as the mandatory notice to employees.

Some of the newest answers to FAQs include the following:

• Questions 20 and 21: Address the fact that employees may take sick time and expanded FMLA intermittently, but only if the employer agrees, in the following circumstances:
  1. If the employee is teleworking, any type of FFCRA leave could be taken intermittently, and in any increments the parties agree to.
  2. If the employee is physically at the workplace, an employee may take intermittent leave if the employee needs to care for their child whose school or place of care is closed, or child care provider is unavailable (in either case specifically because of COVID-19 related reasons). Such leave can only be taken in full-day increments.
• Questions 23-27: Address the fact that, if an employee has been terminated, is on furlough, or the employer has closed its worksite (and as a result, the employee has no work), regardless of whether this change occurred before or after April 1, the employee is not eligible for paid or unpaid leave under the FFCRA.
• Question 28: States that if an employee’s work schedule is reduced by the employer, the employee cannot take FFCRA leave to bridge the gap between the employee’s reduced hours and the hours the employee used to work. However, if a qualifying reason makes the employee unable to work their full schedule, they are entitled to leave based on their prior full schedule.
• Question 29: Confirms that employees cannot collect paid benefits through FFCRA and through unemployment insurance at the same time.
• Question 30: States that employees who have elected group health coverage are entitled to retain that health coverage throughout any period of FFCRA leave.
• Questions 31-33: Provide that only upon agreement between the employer and the employee may an employee run paid time off under the employer’s existing policies and FFCRA leave concurrently, so that the employee can receive full pay while on FFCRA leave.
• Question 40: Explains that, for purposes of determining FFCRA paid family leave eligibility, the interpretation of the term “son or daughter” is consistent with current FMLA regulations, and includes the employee’s own child, which includes a biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis, as well as an adult son or daughter who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.
• Question 43: Confirms that although leave under the FFCRA is job-protected, it does not shield employees from “employment actions, such as layoffs, that would have affected you regardless of whether you took leave.”
• Questions 44-45: Clarify that the 12 weeks of expanded FMLA leave under the FFCRA are cumulative with any other FMLA leave the employee may have already taken. In other words, if an employee has already taken 8 weeks of FMLA leave in the one-year period their employer uses to define eligibility under the FMLA, the employee will only be eligible to take 4 more weeks of expanded FMLA leave under the FFCRA. Further, the amount of FMLA leave previously taken will not affect whether the employee is entitled to take sick leave under the FFCRA.

In addition to the above FAQs applicable to all employers, the DOL also answered some questions that are particularly relevant to health care entities:

• Question 56: Explains that, for purposes of determining who may be excluded from FFCRA coverage, the term “health care provider” broadly includes 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 definition of “health care provider” for this purpose also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility; anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
• Question 57: Explains that, for purposes of determining who may be excluded from FFCRA coverage, the term “emergency responder” is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19, including 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, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency. “Emergency responders” also include individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility, as well as any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Finally, the DOL issued guidance on the application of the small business exemption provided for by the FFCRA:

• Question 58: States that an employer with fewer than 50 employees can claim the small business exemption provided for by the FFCRA if an authorized officer of the business has concluded that:
  1. The provision of paid sick leave or expanded family and medical leave 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;
  2. The absence of the employee(s) requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. 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(s) 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.