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DOL Revisions to FFCRA Regulations: What You Need to Know

September 25, 2020

The Families First Coronavirus Response Act (FFCRA) Regulations were promulgated by the US Department of Labor to implement the FFRCA. Our Employment Law Blawg summary of the FFCRA is here. In response to a ruling from the U.S. District Court in the Southern District of New York, the initial regulations effective on April 1, 2020 were replaced effective, September 16, 2020. Here’s what you need to know about the revisions.

Changes to the regs were deemed necessary to improve the process of taking and requesting paid leave, including the availability of leave and related terms. The DOL aimed to achieve consistency and clarity throughout the regs, and in that vein, the new revisions were outlined to provide the following:

  • Reaffirmation that employees can only take FFCRA leave if and when work is available to them. That is, if someone is on a work reduction layoff, they cannot claim FFCRA leave because there is no work available at the moment.

  • Reaffirmation that employer approval is required for all intermittent leave taken under FFCRA. Failure to seek employer approval will result in denial of FFCRA leave benefits.

  • Clarification that supporting documentation should be provided as soon as possible. Employees must do their due diligence to provide employers with paperwork substantiating their eligibility for leave as quickly as they can when requesting FFCRA leave.

  • Correction of inconsistencies on the circumstances in which employees are required to notify or request permission from employers for FFCRA leave, or any leave related to expanded family and medical needs.

  • Revision of the definition of the term “health care provider”to be defined as “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

In sum, the newly revised FFCRA regs now defines the parameters for which employees have to request leave, or whether they can take leave without substantiated requests. It also clarifies some of the definitions outlined in the previous publication and it corrects inconsistencies to provide clearer guidelines for employers to follow when handling employee leave related to the coronavirus pandemic.

As the world has begun to reopen and the economy to rebound, employment laws must keep pace. However, it is a constant battle of finding balance, so future updates are to be expected as things continue to evolve.

Currently, employers and employees alike need concise, clear policies manage the public health crisis’ impact on their day-to-day operations, including staffing. The new regs are a good place to start with developing those policies for your organization today.

Summary of the Families First Coronavirus Response Act (FFCRA) Paid Time Off

April 20, 2020

The federal Families First Coronavirus Response Act was signed into law on March 18, 2020 by President Donald J. Trump. It became effective on April 1, 2020 and is set to expire on December 31, 2020. The Act amends the federal Family Medical Leave Act to create two types of leave which did not exist previously. The law cannot be applied retroactively, thus it is applicable only to leave that was taken on or after its effective date.

The Act applies only to private businesses who employ less than 500 persons in the United States of America. While employers are to be granted tax credits which will provide reimbursement for wages paid and the cost of continuing health and medical benefits during the leave periods, employers of fewer than 50 persons can obtain an exemption if complying with the Act would jeopardize their continuation as a “going concern”.

Federal Paid Sick Leave Act (FPSLA)

First, the Act creates the Federal Paid Sick Leave Act (FPSLA). This FPSLA provides up to two (2) weeks paid sick leave for employees who have been employed for any duration of time and require leave for the qualifying covid-19 related reasons. Leave would be paid at full wages for one’s own mandatory quarantine, health care official recommended self-quarantine, and presence of covid-19 symptoms. Also, leave would be paid at partial wages for caring for a family member or roommate who is quarantined, undergoing a health care official recommended self-quarantine, caring for children under the age of 18 (or over the age of 18 but unable to care for self due to disability) whose caregiver or school is unavailable due to the pandemic, or similar condition.

Full pay is defined as the employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. And, partial pay is defined as two-thirds of the employee’s regular rate, up to $200 per day and $2,000 in the aggregate. Part time employees refer to employees who work anything less than forty (40) hours in a work week. For those who have variable schedules, an employer may use the daily average over the prior six (6) months to compute the average. 

Employers are prohibited from requiring an employee to use other forms of paid leave or from altering their existing paid leave, before granting an employee leave under the Act. EPSLA leave can be taken in addition to any paid leave program a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a collective bargaining agreement. Employers are also prohibited from requiring the employee to provide another employee to fulfil their job duties in their absence. Lastly, employers are also prohibited from all forms of retaliation or discrimination against an employee for having exercised their rights under the Act. Penalties for failure to provide this paid leave is viewed by the US DOL as a failure to pay minimum wages.

 Employers are required to post or email the notice of the rights poster under the Act. Employer are not required to pay out any unused leave upon separation. 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Secondly, the Act creates a new qualifying reason which is the Public Health Emergency Leave to situations where an employee is unable to work because the employee must care for his or her son or daughter (as defined under the FMLA) whose school is closed or whose childcare provider is unavailable due to a public health emergency; the Emergency Family and Medical Leave Expansion Act (EFMLEA). This law provides up to twelve (12) weeks of leave paid time off work. The first two (2) weeks of leave would be unpaid, then the following ten (10) weeks of leave would be paid at partial pay which is two-thirds the employee’s regular rate of pay based on hours regularly scheduled to work. EPSLA as described above may be used for first two otherwise unpaid weeks of leave. An employee may elect to use accrued leave for this two week period, but the employer cannot require its use.

EFMLEA is available for employees who have been on the employer’s payroll for 30 of the prior 60 days. However, this leave time may be denied to health care workers and emergency responders, regardless of their tenure. EFMLEA can be used on an intermittent basis.

Employers may require or elect that other types of leave run concurrently. For instance, EFMLEA leave time counts towards the old FMLA leave time. However, if concurrent with other types of leave, then the employer must pay the greater of the two rates of leave. Wages are capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA. 

Employees are entitled to job protection under the Act, meaning that employers are required to return employees to the same or similar position they occupied prior to taking leave. However, employers may qualify for an exemption from reinstatement if the employer has fewer than 25 employees. 

Similar with the EPLSA, employers are prohibited from interference with this right and prohibited from retaliation or discrimination against any employee for exercising these rights.

The Act does not provide an individual right of action to include civil damages in a lawsuit against employers with fewer than 50 employees in 75 mile radius.  

Employees are required to provide notice to the employer of the need for leave, as soon as is possible. However, they are not required to utilized DOL forms. For various reasons, including in order to obtain the promised tax credits, however, employers should retain some documentation to support the circumstances warranting leave and its granting of same.

In closing, two frequently asked questions are worthy of note:

  1. Telework is work – it is not leave. Thus, all accounted for teleworking hours must be compensated. 

  2. The FFCRA applies to circumstances which make the employee unable to work, whether or not there is work available. The determinative question is: would the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order for themselves, their child, etc. 

Read all the regulations, fact sheets and updates as they happen here.