As the ‘Reopening of America’ begins, many employers will be faced with implementing the paid leaves provided by the Families First Coronavirus Response Act (FFCRA), which went into effect 1 April 2020 and will continue through the end of the year. The purpose of this article is to provide answers to some commonly asked questions employers have about the act, which applies only to employers with fewer than 500 employees.
On the effective date of the FFCRA, I had more than 500 employees. Due to layoffs and furloughs, I now have fewer than 500 employees. Do I still have to provide this leave?
Yes, if you have fewer than 500 employees on the date an employee requests leave, you are required to provide this leave until you reach the 500-employee threshold again.
What is an isolation or quarantine order?
The Department of Labor (DOL) has chosen to broadly define an isolation or quarantine order to include stay-at-home or safer-at-home orders issued by state and local governments. However, this leave is only available if the employer has work to perform but the employee is unable to work (or to telework) because of the order. Employees may not take paid sick leave for this qualifying reason if their employer does not have work for them as a result of a shelter-in-place or a stay-at-home order.
Are employees entitled to paid sick leave if they are simply ‘at risk’?
Yes, if an employee’s doctor has told the employee to self-quarantine and the employee is unable to work or telework because of the self-quarantine.
Can employees take leave if they make their own decision to self-quarantine?
Generally, no. In order for an employee to be entitled to leave, the employee must be told to self-quarantine by a health care provider.
Can employees claim unemployment for the time they are on paid sick leave/EFMLA?
No. However, if they suffer a reduction in pay or a reduction in hours, they may qualify for partial unemployment benefits (depending on their state).
Do employees get healthcare benefits while on FFCRA leave?
Employees are entitled to continue only those healthcare benefits they already have.
Can an employer reduce an employee’s already existing leave bank while the employee is taking this leave?
Technically yes, but only if the employee agrees. Otherwise, no. The employee may also choose to use existing paid vacation, personal, medical, or sick leave from an existing paid leave policy to supplement the amount the employee receives from paid sick leave, up to the employee’s normal earnings. Employers are advised to get either agreement with the employee in writing. Note, however, that the employer is not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or that exceeds the limits set forth under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
Can an employer pay employees more than they are entitled to receive under the FFCRA and, if so, can the employer claim a tax credit for the entire amount paid to them?
Employers may pay employees in excess of FFCRA requirements, but cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.
Can employees use paid sick leave for non-coronavirus illnesses or injuries?
Can an employer require a doctor’s note upon return to work?
Yes, provided employees are caring for themselves or others who are experiencing symptoms or are ill, employers can require a doctor’s note stating that an employee is fit for duty. Given the strains that are currently being placed on the healthcare system, however, employers may need to be flexible as to what that looks like.
Do small businesses have to provide this leave?
It depends. An employer with fewer than 50 employees (small business) is exempt from providing the following kinds of leave when doing so would jeopardize the viability of the small business:
All other leave must be provided.
How does a small business claim an exemption?
A small business may claim the above exemption if an authorized officer of the business has determined that:
Note that employers should not send any materials to the DOL when seeking a small business exemption but should document the above.
What documentation can employers obtain from employees who go out on leave?
The DOL is allowing employers to collect information required by the Department of Treasury to receive the tax credit.
What if the employee has already exhausted any available FMLA or has less than 12 weeks remaining?
The employee is only entitled to 12 weeks of FMLA leave total, including EFMLA.
What if the employee has a spouse or partner who is already at home? Does an employer have to provide leave?
Generally, if there is someone at home to provide childcare, the employee is not entitled to leave.
What about requests for leave due to weekends, evenings, spring break, or summer vacation when kids are not usually in school?
It’s unclear, but remember that the EFMLA doesn’t apply just to school closures. It is also applicable when childcare is unavailable due to COVID-19. Employees may not have childcare available during those times.
As employers reopen, how do they decide which employees to bring back first?
If an employer is not bringing all employees back to work, they should document a legitimate business reason to explain why some employees are being treated differently. This is especially important in instances where some of the workforce took paid leave under the FFCRA and could now claim retaliation if they are treated differently from similarly situated employees being returned to work.