(This update provides supplemental information and clarifications to our previous alert.)
On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA” or the “Act”) was enacted. The Act provides certain sick and family leave benefits for employees unable to work for reasons related to COVID-19, tax credits for employers who are required to provide leave pursuant to the Act, and additional funding to the states for unemployment benefits. The law became effective on April 1, 2020 and expires on December 31, 2020.
This Legal Alert supplements our prior March 24, 2020 Legal Alert and includes some clarifications contained in temporary regulations issued by the Department of Labor (DOL) on April 1.
Emergency Paid Sick Leave and Expanded Family and Medical Leave
Under the Act, employees who are unable to work or telework for any of six reasons related to COVID-19 may receive up to 80 hours of emergency paid sick leave at full or two-thirds pay, depending on the reason, subject to caps. An employer may not require an employee to use other paid leave before using emergency paid sick leave under the Act.
An employee who is unable to work or telework because the employee is caring for his or son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 may be eligible for expanded family and medical leave in addition to emergency sick leave.
The regulations clarify that emergency sick leave and expanded family and medical leave under the Act may only be taken if the employer actually has work for the employee to do (whether on site or by teleworking).
The regulations also adopt the FMLA definition of “son or daughter” for both emergency paid sick leave and expanded family and medical leave.
How do paid sick leave and extended family and medical leave interact under FFCRA?
An employee caring for his or her son or daughter may be eligible for both sick leave and family and medical leave for a total of 12 weeks. Although the first two weeks of expanded family and medical leave are unpaid, the employee may elect to substitute emergency paid sick leave (at two-thirds pay) if not already used, or accrued paid leave provided by the employer. After two weeks, the employee would receive 2/3rds of the employee’s regular rate of pay for up to 10 additional weeks of family and medical leave (subject to the applicable caps). The employer and employee may agree to supplement the 2/3 pay by substituting accrued paid leave so that the employee receives the full amount of his or her normal pay. However, the employer is not entitled to a tax credit for any leave that is not required to be paid under the Act or that exceeds the caps.
The regulations clarify that employees may only take extended family and medical leave if they have not exhausted their entitlement to FMLA leave. Further, the use of extended family and medical leave counts toward the 12 workweeks of FMLA leave to which the employee is entitled in a 12-month period.
May leave be taken on an intermittent basis?
Yes, under certain circumstances. First, if the employer and employee agree, an employee may take emergency paid sick leave or expanded family and medical leave intermittently to care for the employee’s son or daughter. Second, if the employer directs or allows the employee to telework or the employee normally works from home, the employer and employee may agree that the employee can take emergency paid sick leave for any qualifying reason or expanded family and medical leave intermittently. (Note: Non-exempt employees who are teleworking must be paid for all hours worked; however, the new DOL regulations permit the work to be performed during normal hours or at other times agreed to by the employer and the employee.)
If I provided paid sick leave to my employees for reasons covered under the Act prior to April 1, can I count that leave against the 80 hour total?
No. The Act imposes a new leave requirement that becomes effective on April 1, 2020. If an employer provided leave to an employee prior to that date, that leave may not be counted against the 80 hours of leave for which the employee is eligible under the Act.
Do employers need to notify employees of their rights under the Act?
Yes. The notice should be posted in a conspicuous place, which may be on the employer’s website or intranet. For employees currently working from home, an employer can satisfy this requirement by emailing or direct mailing the FFCRA notice to those employees. The notice also must be provided to all new hires. The DOL has issued a model notice (in English and Spanish) for employers to use, available at https://www.dol.gov/general/topics/posters.
May employers require employees to provide notice and documentation of their need for leave under the Act?
Yes. An employer may require an employee to follow reasonable notice procedures. An employee is also required to provide documentation containing certain information prior to taking emergency paid sick leave or expanded family and medical leave, as follows:
- Employee’s name
- Date(s) for which leave is requested
- Qualifying reason for the leave
- Oral or written statement that the employee is unable to work because of the qualified reason for the leave
- If applicable, name of government entity that issued the quarantine or isolation order
- If applicable, name of the health care provider who advised the employee to self-quarantine
- If applicable, name of the health care provider who advised the individual being cared for by the employee to self-quarantine
- If applicable, the name of the son or daughter being cared for; the name of the school, place of care, or child care provider that has closed or become unavailable; and a representation that no other suitable person will be caring for the son or daughter during the period of leave.
(Note that the required documentation does not include a doctor’s note.)
All documentation must be retained for four years, whether leave was granted or denied.
Employers should also be sure to maintain documentation required by the IRS with respect to claiming payroll tax credits. https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
Please contact Steve Metzger, Sydney Fortmann, Kathy Hoskins, Saul Gilstein, or another member of the firm’s Employment Practice Group if you have any questions or require assistance addressing the Act or its implementing regulations.
This client alert is for informational purposes and is not legal advice. The COVID-19 crisis has created a very fluid situation, in which changes to the law or related guidance can occur on a daily basis. Please contact your legal advisor for assistance before acting in relation to the subject of this client alert.
Benjamin J. RubinPartner
Ben Rubin is a transactions attorney who focuses on residential, commercial, and mixed-use real estate development projects. He advises developers and investors from land acquisition through development, construction, operation, and disposition. He works with clients on both market rate and affordable housing projects, including those financed with low-income housing tax credits. Ben also represents borrowers and lenders with respect to construction and permanent real estate financing, as well as non-real estate commercial loans.