The Department of Labor issued a series of Q&As regarding the Family First Coronavirus Response Act (FFCRA) that expands the Family Medical Leave Act and requirements of Paid Leave. I would encourage all employers to review the recent guidance from the DOL available at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
A few highlights from the Q&A’s were as follows:
Businesses with Fewer than 50: The legislation cited that businesses with fewer than 50 employees may be eligible for an exemption if it would jeopardize the viability of the business. How does a business take advantage of the exemption? The instruction from the DOL was to document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.
The Q&As provides guidance and reminders to employers on properly calculating the regular rate and addressing issues of how overtime and part time employees are eligible for paid leave.
Documentation of Paid Leave: There is a tax credit available to employers. It will be critical for employers to maintain the records for reimbursement of costs. The DOL explained the requirements for documentation as follows:
If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
Questions about Closures: Many employers have been asking how closures or furloughs impact the requirements to pay sick leave or the expanded medical leave.
If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?
No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.
If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits.
In many ways, the guidance clarifies the scope of the paid sick leave or expanded family and medical leave in a more limited manner, and it explains the critical requirements of when it applies. The questions substantially clarifies how the FFCRA is intended to interact with other employee benefits and unemployment resources available employers. As you are preparing to implement these policies for April 1, 2020, we are here to help you navigate this new legislation.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.