FFCRA: DOL Questions and Answers Updated (Again)

The Department of Labor (“DOL”) once again updated their Questions and Answers related to the Family First Coronavirus Response Act (“FFCRA”).  This update provides much needed clarifications to FFCRA, as well as providing guidance on how the DOL will interpret and enforce the Act.  Given that the FFCRA does not become effective until April 1, 2020, employers have the opportunity to adjust their proposed courses of action accordingly.

Starting with Q&A No. 38, the DOL provides helpful guidance on which employees are eligible for paid sick leave and expanded family and medical leave, and emphasizes once again that whether an employer is covered is dependent on the day that the leave is taken.  It also provides contact information for those who believe their employer is not providing appropriate paid leave under the FFCRA.

Most importantly, the DOL has finally made clear that expanded FMLA leave under the FFCRA is not in addition to the amount of FMLA available to employees.  For those employers who were not covered by the FMLA before the FFCRA, then the employees will have the full allotment of FMLA leave available to them.  For those employees who previously took FMLA however, they will only be eligible for expanded FMLA leave for a COVID-19 related reason if they have leave remaining under the FMLA.  Thus, expanded FMLA leave is not, unlike the two weeks of emergency paid sick leave under the FFCRA, on top of what FMLA requires.  And, for those who take FMLA leave for a COVID-19 related reason, the FMLA taken will reduce the amount of FMLA available to them during the 12 month period the employer uses for calculating available FMLA leave.

In addition, the DOL provides guidance on whether public sector employees are eligible for emergency paid sick leave or expanded FMLA leave under the FFCRA.  The Q&A reveals yet another distinction between emergency paid sick leave versus expanded FMLA leave, inasmuch as while emergency paid sick leave generally applies to all employees working for a public agency or other unit of government, expanded FMLA likely applies only to non-federal public agency employees.

There also is guidance in Q&A No. 55 for employers in terms of the definition of “health care provider” for purposes of determining individuals whose advice to self-quarantine due to COVID-19 concerns can be relied upon for paid sick leave.  The DOL states that a health care provider means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.  For those needing a refresher on what that means, you can view 29 CFR sec. 825.125 here for a list.

Finally, the Q&A provide employers with fewer than 50 employees important guidance in making the determination that they cannot pay emergency paid sick leave or expanded FMLA leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons.  Essentially, a small business (fewer than 50 employees) can claim this exemption if an authorized officer of the business determines:

  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 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.

Remember, the DOL does not want anyone to submit information to it when making this determination.  Scrutiny will inevitably come after an employer makes this determination, denies FFCRA leave, and then that determination is challenged by the employee denied paid leave.

You can view the full Questions and Answers here.  We encourage you to reach out to us if you have any questions regarding this Q&A, the FFCRA, the new CARES Act, or any other issues you are having during this difficult time.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these and other issues.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements