On March 27th, the Department of Labor (DOL) issued fifty-eight (58) FAQs providing further guidance regarding the Families First Coronavirus Response Act (FFCRA). The FAQs can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Significant takeaways from the FAQs include:
- Employees are permitted only one 80 hour leave for Emergency Paid Sick Leave (EPSL). An employee cannot take 80 hours of EPSL for themselves, and then an additional 80 hours of EPSL to care for a family member or child due to school closure. Remember however that the employee may be eligible for an additional 10 weeks of leave under the Emergency Family Medical Leave Expansion Act (EFMLEA) to care for a child due to school or childcare closure. FAQ 9.
- The FFCRA requirements are not retroactive and therefore do not apply to leave taken prior to April 1, 2020, the effective date of the FFCRA. An employer also may not deny leave under the FFCRA because the employer provided the employee leave for an FFCRA qualifying reason prior to April 1, 2020. FAQ 11.
- Employees may take intermittent leave under the FFCRA only if the employer agrees to provide intermittent leave. FAQ 20.
- Employees do not receive leave under the FFCRA if the employer closed or the employee was terminated before April 1, 2020. FAQs 21-25.
- If the employer closes or the employee is laid off or terminated after April 1, 2020, the employee is entitled to leave only through the last day of employment. FAQs 21-25.
- If an employee’s scheduled hours are reduced, the employee is not entitled to use the FFCRA for any reduced hours. FAQ 28.
- Employers cannot require an employee to take PTO or other leave prior to taking leave under the FFCRA. Similarly, the employee cannot use PTO at the same time they are on FFCRA leave to effectively “double dip”. An employee may supplement their FFCRA leave with any available PTO however to receive up to their normal earnings, but the employer cannot require the employee to supplement. FAQs 31-32.
- Important – if an employee has already used FMLA prior to April 1, 2020, the employee may not be able to take EFMLEA leave if the employee has used all of their available FMLA leave. Employees are only permitted to take a total of 12 weeks of FMLA leave, including EFMLEA, during a 12 month period. FAQ 44.
- The FAQs provide only limited additional guidance regarding the potential exemption for employers with fewer than 50 employees (the “small business exemption”). Keep in mind, the small business exemption is available only for EPSL or EFMLEA leave to care for a child due to school or child care closure.
Additional eligibility standards for the small business exemption are set out in FAQ 58, providing an employer with fewer than 50 employees may be exempt if the employer determines that complying with the FFCRA requirement would jeopardize the viability of the small business as a going concern. This determination must be made by “an authorized officer of the business” and establish that:
- 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;
- 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
- 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.
Unfortunately, exactly how a small business exemption is requested has yet to be determined, with the FAQs indicating only that DOL will issue additional guidance. In the meantime, the FAQs specifically state that employers should not send requests for exemptions to DOL. FAQ 4. If you do anticipate requesting a small business exemption, or have any other questions, reach out to Peter Hicks (541) 797-2079 or Steve Shropshire (503) 522-8667 with any questions or issues.
