Frequently Asked Questions Related to Families First Coronavirus Response Act’s Leave Provisions

In advance of April 1, 2020, when the Families First Coronavirus Response Act (FFCRA) takes effect, the United States Department of Labor’s Wage and Hour Division (WHD) has issued guidance and information for employers and employees regarding the leave provisions set forth in the FFCRA’s Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Below are answers to some of the most frequently asked questions related the FFCRA’s emergency paid sick leave and expanded family and medical leave.

When does the FFCRA, which includes the paid leave provisions set forth in Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, take effect?

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Are the emergency paid sick leave and expanded family and medical leave requirements retroactive?

No.

Who is eligible for expanded family and medical leave?

An eligible employee is an individual who has been an employer’s payroll for the 30 calendar days immediately prior to the day the leave would begin.

Does an employee qualify for emergency paid sick leave or expanded family and medical leave for a COVID-19 related reason even if he or she has already used some or all of his/her leave under the Family and Medical Leave Act (FMLA)?

An eligible employee is entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave he or she have taken under the FMLA.

An employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employer was covered by FMLA prior to April 1, 2020, an employee’s eligibility for expanded family and medical leave depends on how much leave he/she has already taken during the 12-month period that the employer uses for FMLA leave.

Who is full-time employee and who is a part-time employee under the Emergency Paid Sick Leave Act?

For purposes of the Emergency Paid Sick Leave Act, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week. A part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.

The Emergency Family and Medical Leave Expansion Act does not distinguish between full-time and part-time employees.

How does an employee calculate the hours worked by a part-time employee for purposes of emergency paid sick leave or expanded family and medical leave?

A part-time employee is entitled to leave equivalent to his or her average number of work hours in a two-week period. Therefore, an employer should calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, an employer may use a six-month average to calculate the average daily hours.

What is an employee’s regular rate of pay for purposes of the FFCRA?

The regular rate of pay which is used to calculate an employee’s paid leave under FFCRA is the average of his or her regular rate over a period of up to six months prior to the date on which the employee takes leave.

Who is an emergency responder?

An 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. This includes but is not limited to the following:

• 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; or
• 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.

Who is a son or daughter?

The FFCRA defines a “son or daughter” is an employee’s own child, which includes his/her biological, adopted, or foster child, his/her stepchild, a legal ward, or a child for whom he or she is standing in loco parentis (i.e., someone with day-to-day responsibilities to care for or financially support a child). The WHD’s also defines “son or daughter” as an employee’s adult child who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

May an employee take 80 hours of emergency paid sick leave for his/her self-quarantine and then another amount of emergency paid sick leave for another reasons provided under the Emergency Paid Sick Leave Act?

No, an employee may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of the qualifying reasons under the Emergency Paid Sick Leave Act.

If an employee is unable to work or telework because his or her child’s school or place of care is closed, or child care provider is unavailable, are they entitled to both paid sick leave and expanded family and medical leave?

Yes, an employee may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave, and thus covers the first 10 workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless an employee elects to use existing vacation, personal, or medical or sick leave under the employer’s policy.

What records does an employer need to request when an employee takes emergency paid sick leave or expanded family and medical leave?

Examples of records and documents that an employer may request from its employees include, but are not limited to: a copy of the Federal, State, or local quarantine or isolation order related to COVID-19, written documentation from a health care provider, notice or email from government, school, or child care provider. Such records are critical for private sector employer intend to claim a tax credit under the FFCRA for the payment of emergency paid sick leave or expanded family and medical leave wages.

Can emergency paid sick leave or expanded medical leave be used intermittently?

Unless an employee is working from home, once he or she begins taking emergency paid sick leave for one or more of these the following reasons, he or she must continue to take paid sick leave each day until he or she either (1) uses the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave.

If an employer and employee agree, an employee may take paid sick leave intermittently if an employee is taking paid sick leave to care for his/her child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons.

If an employer closes its business while an employee is on emergency paid sick leave or expanded family and medical leave, what happens?

If an employer closes its business while an employee is on emergency paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave he or she used before the employer closed.

If an employer is open, but furloughs an employee on or after April 1, 2020 (the effective date of the FFCRA), can the employee receive emergency paid sick leave or expanded family and medical leave?

No.

If an employer reduces its employees’ scheduled work hours, can the employees use emergency paid sick leave or expanded family and medical leave for the hours that the employees are no longer scheduled to work?

No.

If an employee takes emergency paid sick leave or expanded family and medical leave, must the employer continue his or her health coverage?

Yes, if an employer provides group health coverage that an employee has elected, the employee is entitled to continued group health coverage during the emergency paid sick leave or expanded family and medical leave on the same terms as if he or she continued to work.

May an employer supplement or adjust the pay mandated under the FFCRA with paid leave that the employee has under its paid leave policy?

No, under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from the employer’s paid leave policy to supplement the amount the employee receives from paid sick leave or expanded family and medical leave.

Can an employer pay its employees more than what they are entitled to receive for emergency paid sick leave or expanded family and medical leave?

Yes, an employer may pay your employees in excess of FFCRA requirements. However, an employer cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.

Do employees have a right to return to work if he or she is taking emergency paid sick leave or expanded family and medical leave under the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act?

Yes, the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.

If an employee takes emergency paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which he or she is entitled under State or local law, or the employer’s policy?

No, emergency paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or an employer’s existing policy.

Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Under what circumstances is a small business employer with less than 50 employees exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

• Employer employs fewer than 50 employees;
• Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
• An authorized officer of the employer has determined that at least one of the following three conditions applies:

1. 1. The emergency 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 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 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 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.

Keller Thoma will continue to monitor the federal and state legislation and regulations, as well as executive Orders with respect to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.