Families First Coronavirus Response Act Update #2 (Benefit Minute)

Posted in: Benefit Minute, COVID-19, Employee Benefits

The Department of Labor has issued additional Questions and Answers providing more compliance assistance for implementation of the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA) provisions of the Families First Coronavirus Response Act (FFCRA).  Highlights of the additional DOL Questions and Answers are discussed below.

Office Closures/ Furloughs/Reduction in Hours

The Q&As clarify that individuals are not eligible for EPSL and EFMLA in the following situations:

  • Employees who, prior to April 1, 2020, were sent home and are no longer being paid because the employer worksite closed.
  • Employees who, on or after April 1, 2020, are sent home and are no longer being paid because the employer worksite is closed.
  • Employees who are already on EPSL or EFMLA when the employer closes the worksite on or after April 1, 2020 (in this case, the employer must pay for any leave taken prior to the closure).
  • Employees who are furloughed on or after April 1, 2020 due to lack of work, even if the worksite remains open.

These rules apply whether the employer closes the worksite due to lack of business, closes the worksite pursuant to a federal, state, or local directive, or furloughs specific employees due to lack of work.  In all of these cases, unemployment benefits may be available to these employees.  Conversely, any employee receiving EPSL or EFMLA will generally not be entitled to receive unemployment; however; each state has its own rules governing available unemployment benefits.

When an employee is working reduced hours due to lack of work, EPSL and EFMLA are not available to make up the difference in pay.  However, if an employee working a reduced schedule is prevented from working the modified hours due to a qualifying reason, the employee would be entitled to EPSL or EFMLA based on the work schedule before the reduction.

EPSL and EFMLA are available through December 31, 2020.  If an employer reopens a worksite before this date and/or furloughed employees return to work, this paid leave will still be available to employees through the end of the year.

Telework

Under the FFCRA, an employee is unable to work if the employer has work for the employee, but one of the EPSL/EFMLA qualifying reasons prevents the individual from being able to perform that work either under normal circumstances at the normal worksite or by means of telework.  An employee may telework if the employer permits the employee to perform work at home or a location other than the regular workplace.  Telework is work for which normal wages must be paid and therefore will not be compensated as EPSL or EFMLA.  When an employee is able to telework while caring for a child, EPSL and EFMLA is not available.  This will likely have to be evaluated on a case-by-case basis.

If both the employer and employee agree than an employee may telework for their normal number of hours on a different work schedule (such as early in the morning or late at night), then the employee is able to work and in not entitled to EPSL or EFMLA unless a qualifying reason prevents the employee from working the agreed-upon schedule.

Intermittent Leave

The Q&As state that intermittent leave under EPSL and EFMLA may be taken with the permission of the employer in the following circumstances:

  • For qualifying reason of care for a son or daughter if the school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions (whether employee is at the worksite or teleworking).
  • For any of the other qualifying reasons, but only if the employee is able to telework.

Intermittent leave may be taken in any increment, provided that the employer and the employee agree.  The DOL is supportive of voluntary arrangements that combine working and intermittent leave, and is encouraging employers and employees to collaborate to meet mutual needs.

Other Paid Leave & Employee Benefits

EPSL and EFMLA are new leave entitlements effective April 1, 2020 and are in addition to other paid leave that may be available to an employee.  An employer cannot require employees to use other paid leave prior to using EPSL/EFMLA, nor can the employer require an employee to supplement EPSL/EFMLA with other paid leave.  However, an employee may choose whether to use leave available under the FFCRA or other leave that is available under the employer’s policy.  In addition, if permitted by the employer, an employee may elect to supplement EPSL or EFMLA with other leave available from the employer, up to 100% of the employee’s normal earnings.  The employer may only claim a tax credit for the amount required to be provided to the employee under the FFCRA.

Consistent with general FMLA requirements, group health coverage must be continued during EPSL and EFMLA under the same terms and conditions as for employees who are not on paid leave.  Employees must continue to make their share of contributions for the coverage, which can be deducted from EPSL or EFMLA.  The tax credit available under the FFCRA will be increased by the employer’s qualified health plan expenses that are allocable to the paid leave.

In addition, the Q&As confirm that EFMLA coordinates with general FMLA for a total leave entitlement (paid and unpaid) of 12 weeks in the applicable 12-month period.

Recordkeeping

An employee requesting EPSL must provide the employer with the following information:

  • Employee’s name
  • Qualifying reason for requesting leave
  • Self-certification that the employee is unable to work (including telework) for the qualifying reason
  • Dates for which leave is requested
  • Documentation of reason for leave, which may include copy of quarantine order, written documentation from health care provider, public notice of school closure or email from employee of school or child care provider.

For EFMLA, general  FMLA notice requirements apply.  Since the standard FMLA forms do not address the expanded FMLA reason, it may be necessary to modify these forms to account for this situation.