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The Department of Labor (“DOL”) has issued additional guidance aimed at helping employers administer Emergency Paid Sick Leave and paid Family Medical Leave as part of the Families First Coronavirus Response Act (FFCRA).

The first round of guidance issued on March 24, 2020 focused largely on coverage and pay calculations and answered fourteen (14) different “frequently asked questions”. Since then, the DOL has answered forty-five (45) additional questions regarding FFCRA implementation and compliance. The entire Questions & Answers publication is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

In this latest round of guidance, the DOL has provided critical information that employers need to be aware of, including the following:

1.  Documentation Required for Leave: The DOL has advised that employers must require an employee to provide “appropriate documentation” identifying the reasons for requested leave, a statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested. According to the DOL, appropriate documentation includes:

a.  The source of any quarantine or isolation order, this may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee;

b.  The name of the health care provider who has advised the employee to self- quarantine, and/or written documentation from the health care provider advising the employee to self-quarantine due to concerns related to COVID-19; and

c.  A notice that has been posted on a government, school or daycare website, or published in a newspaper or an email from an employee or official of the school, place of care, or child care provider.

2.  Paid Leave Unavailable During Furloughs or Temporary Layoffs: The DOL has also addressed the question of whether employees are eligible to receive paid sick leave or expanded family and medical leave in the event of a furlough, temporary layoff, or worksite closure. The DOL guidance makes it clear that if an employee is furloughed because their employer did not have enough work or business available, the employee would be eligible for unemployment insurance benefits rather than paid sick leave or expanded family medical leave. Likewise, if an employer closes a worksite, even if only temporarily because of this crisis, the employees from that worksite would not be entitled to paid sick leave or expanded family medical leave.

3.  Small Business Exemption: The DOL has clarified that small employers (those with less than 50 employees) may claim an exemption if an authorized officer of the business has determined that one of the following applies:

a.  The provision of paid sick leave or expanded FMLA would result in the small business’s expenses and financial obligations to exceed available business revenues and cause the small business to cease operating at a minimal capacity;

b.  The absence of the employee or employees requesting sick leave or expanded FMLA 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

c.  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 FMLA and these labor services are needed for the small business to operate at a minimal capacity.

However, the DOL has now made it clear that this exemption is not equally available across the board. Rather, the DOL’s most recent guidance indicates that school closures and/or child care reasons for leave will be the ONLY reasons for which this exemption is available.  As a result, small businesses with less than 50 employees will not be able to claim an exemption from compliance with the Emergency Paid Sick Leave provision for reasons 1-4 and 6, as outlined in the Act.

4.  Full-Time/Part-Time Now Defined: Under the Act, full-time employees are entitled to receive 80 hours of emergency paid sick leave while part-time employees receive the number of hours they normally would work during a two-week period. Since the number of hours required to be worked by an employee in order to be considered full-time tend to vary from employer to employer, this was problematic. Now, the DOL has clearly defined who is a full-time employee and who is a part-time employee for purposes of Emergency Paid Sick Leave and employers will be required to use such definitions in administering such leave, regardless of the definition currently held by their specific business. According to its latest guidance, a full-time employee is one who is normally scheduled to work 40 or more hours per week and a part-time employee is one who is normally scheduled to work fewer than 40 hours per week.

There is still much to be addressed by the DOL and we will likely be seeing some additional guidance provided within the week(s) to come. While we will continue to keep you updated on additional information as it becomes available, all employers are encouraged to visit the DOL’s website, as well as the link above, in order to review the guidance materials in their entirety.

If you have any questions or concerns regarding the FFRCA, please let us know. Our labor and employment law attorneys stand ready to help you through these unprecedented times.

Article by Christine Vizcaino

NOTE: This article was updated on March 31, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, consult with counsel for the latest developments and updated guidance on this topic.