FFCRA: DOL Questions and Answers (Updated)

Friday afternoon, March 27, 2020, the Department of Labor (“DOL”) updated their Questions and Answers related to the Family First Coronavirus Relief Act (“FFCRA”).  This update provides much needed clarifications to FFCRA, as well as providing guidance on how DOL will interpret and enforce the Act.  Given that FFCRA does not become effective until April 1, 2020, employers have the opportunity to adjust their proposed courses of action accordingly.

The updates start with Q&A 15 – what records do I need to keep when my employee takes paid sick leave or expanded FMLA?  The guidance directs employers to the IRS requirements for documentation needed to claim the tax credits under the FFCRA.  Surprisingly, the guidance does not address what (if any) documentation is required to substantiate a claim by an employee that they are experiencing COVID-19 symptoms and seeking a diagnosis.  Generally speaking, however, the documentation required is relaxed from what employers are used to under the FMLA.  Those of you interested in developing an updated form for FFCRA leave (both emergency and expanded FMLA paid leave) should contact us (via e-mail through our contact page) to discuss such an option.

Other Q&A’s provide helpful guidance for both employers and employees in terms of when an employee is unable to work such that they can seek paid leave (a person who can work an adjusted telework schedule to early morning and late evening is NOT unable to work), whether an employee can take paid sick leave or expanded FMLA leave intermittently (only if an employer allows it and only if the employee is teleworking and taking sick leave to care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 reasons), and that the DOL will use the joint-employer and integrated employer tests to calculate whether a business has 500 employees.

Importantly, the DOL also discusses whether an employer is required to provide paid sick leave or expanded FMLA leave if the worksite closes before or after April 1.  Regardless of when the worksite closes (before or after April 1) and regardless of whether it is due to loss of business or a stay at home order, employees are not eligible for emergency paid sick leave or expanded FMLA paid leave if they are terminated, laid off, furloughed, or if the worksite closes.  The employer would only have to pay emergency paid sick leave or expanded FMLA paid leave if the work site closes after April 1, and only through the day the employee’s employment ends/furlough begins.  In addition, if an employee’s hours are reduced, that employee would not be eligible for emergency paid sick leave or expanded FMLA paid leave for the reduced hours unless a COVID-19 qualifying reason prevents the employee from working his or her full schedule.

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

Learn more aboutBryan LeMoine
Bryan has represented public, private, and nonprofit organizations in almost every aspect of labor and employment law. He litigates before administrative agencies, in arbitrations, and in State and Federal courts throughout the country. In addition, he counsels employers through difficult legal issues that arise every day in running a business.