U.S. Department of Labor puts out additional guidance on the Families First Coronavirus Response Act (FFCRA) in its expanded Q&A.

Recently, the U.S. Department of Labor put out additional guidance on the Families First Coronavirus Response Act (FFCRA) in its expanded Q&A.

The full length Q&A can be found here.

Below are the some of the new key takeaways from the Q&A.

• Small Business Exemption: The Small Business Exemption may be available to businesses with fewer than 50 employees, but it only applies to requests for: (1) Emergency Paid Sick leave due to a child’s school or place of child care being closed due to COVID-19; and (2) Emergency FMLA due to a child’s school or place of child care being closed due to COVID-19. Additionally, DOL explained what a business is required to show in order to support the claim that providing such leave would “jeopardize the viability of the business.”  See #58 and #59 in the Q&A linked above.

 

• Leave Documentation: In terms of the documentation employers are required to maintain regarding Emergency FMLA and Emergency Paid Sick Leave, DOL stated that employers who intend to claim the tax credit must retain appropriate documentation and should consult the IRS application forms, instructions and information for the procedures that must be followed to claim the credit. We anticipate that such documentation will include the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason and the dates of leave.  When we have additional guidance on this, we will share it.

  If an employee takes Emergency FMLA to care for a child whose school or place of care is closed due to COVID-19, the employer may also require the employee to provide additional documentation in support of such leave, to the extent permitted under the certification rules for traditional 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.

 

• “Unable” to Work or Telework: An employee is unable to work or telework (as required for Emergency FMLA and Emergency Paid Sick Leave) if the employer has work for that employee and that employee is unable to do that work due to a COVID-19 qualifying reason in the FFCRA. This includes work that the employee completes under normal circumstances at the normal worksite or by means of telework.

 

• 12 Weeks of FMLA and Emergency FMLA Total: For employers covered by traditional FMLA, it is important to note that an employee is entitled to a total of 12 weeks of FMLA and Emergency FMLA during a 12-month period, even if that traditional FMLA was taken prior to April 1, 2020.

 

• Intermittent and Incremental use of Leave: Employees may take intermittent or incremental Emergency FMLA or Emergency Paid Sick Leave only if it is agreed to by both the employer and employee.

 

• Definition of Health Care Provider: The definition of “health care provider” is expanded to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” See #56 in the Q&A linked above.

 

If you have any employment and labor questions, please contact Susan Rodgers at [email protected], Jerry Chattman at [email protected], or Katie Duffy at [email protected]