Updated FAQs related to the FFCRA based on Department of Labor Regulations

Since the Department of Labor (DOL) regulations are now finalized, we thought it would be a useful exercise to revisit some of our prior FAQs that relate to the FFCRA and the new regulations.  While our prior guidance is consistent with the new DOL regulations (which, notably, only apply to employers with fewer than 500 employees), we have added to our original FAQ responses to help shed some additional light on how the new federally-mandated paid time off requirements may impact other business/personnel-related decisions.  Original FAQ responses are in standard font, while our updates are in bold red font.

No. 2: If I Force An Employee To Go Home Or Stay Home, Do I Have To Pay Them For The Time Away From Work?

Employees who are off work voluntarily or involuntarily due to the flu should be treated the same as any other employee who is off work due to a non-work-related illness or injury. A determination of whether that time off is paid or unpaid depends on a number of factors, such as their status under the Fair Labor Standards Act (“FLSA”) (exempt or non-exempt); a union contract; the length of the time off; the employer’s sick pay policies; the employee’s previous use of sick pay; and benefit plans, such as short-term disability. If an employer is not legally obligated to pay for such sick days, consideration can nevertheless be given to paying sick employees as an added incentive for them to stay home until they are no longer contagious. Also, see FAQ No. 12 below dealing with the Family and Medical Leave Act (“FMLA”). 

Updated Response Based On April 1, 2020 DOL Regulations: Times have changed, and some employers who are “non-essential” must close and require their employees to stay home.  Other employers who are “essential businesses” under state/local Shelter in Place/Stay at Home Orders (“SiP Orders”) may still have some employees working remotely from home.  In either case, the DOL has made clear that Emergency Paid Sick Leave (“EPSL”) under the FFCRA is not available to the employee if the employer does not have work for the employee to do.  Only an employee who is subject to a SiP Order and the employer otherwise has work for the employee to do, but cannot do so (even remotely) due to being the subject of the SiP Order, is entitled to take EPSL.  

No. 15 Does Coronavirus Qualify for FMLA Leave?

Generally, yes. If the employer is covered by the FMLA because it has 50 or more employees, or similar state or local laws, an employee suffering from Coronavirus could be eligible for FMLA if they have one year of service, worked 1250 hours in the prior year, work in a location that includes 50 employees within a seventy-five mile radius, and meet the definition of having a “serious health condition.” That definition includes in pertinent part:

A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: (i) treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or, (ii) one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy). See Department of Labor regulations on FMLA located at 29 CFR Chap. 825.

While FMLA is generally unpaid, employees can be required to use sick and vacation days as payment for those days off, so long as such a requirement does not conflict with any state law or collective bargaining agreement.

No. 16: If an Employee has a Sick Child with Flu-Like Symptoms, does FMLA Cover Any Absences Associated with the Employee Staying Home to Care for the Child?

Generally, yes. Assuming an employer is covered by FMLA and the employee has otherwise met the general eligibility requirements (see FAQ No. 15), an employee may be eligible for FMLA to stay home and care for a sick child if the child suffers from a “serious health condition.” Medical certification of the child’s serious health condition and the need for parental care is required. The medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. It also includes situations where the employee may be needed to substitute for others who normally care for the family member. This later scenario may arise in the case of a Coronavirus outbreak if a child’s regular caregiver becomes ill.

Updated Response Based On April 1, 2020 DOL Regulations: The FFCRA and the new DOL regulations make clear – a new qualifying reason will entitle an employee to the new Expanded FMLA Leave (“EFMLA”) to care for a child whose school or other place of care is closed for reasons related to COVID-19, and the employee cannot otherwise telework and alternative child care is not otherwise available.  The EFMLA is not, however, a new bank of FMLA leave for an employee, but rather just an additional qualifying reason to take FMLA leave (which must be partially paid, as we address elsewhere) between now and December 31, 2020.

No. 25:  If an employee is quarantined while traveling on business and does not work, must I pay them?

There is no simple answer that will address every factual permutation that this question presents. The general rule is that if an employee is not working (or in the lingo of the Fair Labor Standards Act “being permitted or suffered to work”), then the employer does not have to pay the employee.  Of course, an exempt employee who has worked any amount during the work week, should be paid his or her regular salary for the work week.

However, employees who contract diseases while in the course and scope of their employment are likely entitled to worker’s compensation benefits. While workers’ compensation laws are state specific, if workers’ compensation is available, it will provide partial replacement for lost wages. The issue of course will be if the employee contracted the Coronavirus while on the job or did he or she contract the virus and bring it to the job? Under the latter scenario, it would be expected that workers’ compensation benefits would not apply.  Therefore, now would be a good time to review the details of your workers’ compensation policy to determine what, if any, conditions triggered by Coronavirus may be covered.   If there is no wage loss coverage through workers’ compensation, employer flexibility will buy greater cooperation from employees and maintain positive morale during very trying circumstances.

Finally, employers should remember that if the employee is part of a bargaining unit subject to a collective bargaining agreement, the collective bargaining agreement may address these compensation issues and an employer must comply with it or possibly be subject to a grievance for violation of the agreement.

Updated Response Based On April 1, 2020 DOL Regulations:  An employee who is quarantined either under directive of a SiP Order, because a health care provider has advised the employee to self-quarantine due to COVID-19 concerns, or because the employee is experiencing COVID-19 symptoms and is seeking medical diagnosis from a health care provider, and who cannot also telework, may now be eligible for EPSL leave under the FFCRA.  This is true whether or not the employee qualifies during business travel.

No. 30:  Can an employee use paid sick leave in California for quarantine time?  

Yes.  According to California’s Labor Commissioner, paid sick leave can be used for self-quarantine due to COVID-19 exposure if recommended based on civil authority or travel to a high-risk areas. Despite that, employers cannot require employees to use sick leave in these circumstances. Employees may also be eligible disability benefits. 

Updated Response Based On April 1, 2020 DOL Regulations: Note that the new EPSL under the FFCRA and DOL regulations may also apply under these circumstances (i.e. if an employee is diagnosed with COVID-19 or is experiencing symptoms and is seeking treatment or diagnosis, and cannot otherwise telework), except that an employee may choose to use accrued paid time off for which that employee is eligible before seeking EPSL.  Unlike regular FMLA, however, an employer cannot require an employee to do so.  

No. 40: What are considered essential businesses?

There is no uniform definition of what is an essential business.  A number of states and municipal governments have issued various types of Shelter in Place and other executive orders restricting business activities and mobility of people.  Some governments have instituted night curfews.  Each order is different and each order defines what it determines to be an essential service. You should consult the order that apply to your location.  However, note that even if a business is considered “essential,” not all employees can or should continue to come to work.  Employees who are able to work remotely likely should be provide equipment and the opportunity to do so.  Regardless, employers should follow CDC and local public health authority social distancing guidelines. 

Updated Response Based On April 1, 2020 DOL Regulations: As previously noted, employees who are subject to a SiP Order may be eligible for EPSL, but only if they cannot also telework and only if the employer has work available but the employee cannot do it due to the SiP order.  Additionally, an employee may be eligible for EPSL if an individual upon whom the employee relies for care is subject to a SiP order.  Such an individual need not be a family member, and includes anyone with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined (i.e. an elderly neighbor with no family who the employee regularly provides care for outside of the current COVID-19 crisis).  

No. 41: What is the difference between a furlough and layoff and how do I explain it when announcing it?

The terms furlough, lay off, reduction-in-force have no independent legal meaning.  However, in the common parlance since the outbreak of the Coronavirus pandemic, furlough has come to mean placing an employee on a temporary, unpaid cessation of work with the hopes that as soon as the pandemic abates the employer will be able to recall the employee to work (i.e. a temporary unpaid leave of absence).  A layoff has come to mean a severing of the employment relationship.  Because of the various ways these terms are bandied about, the better practice is to always communicate a change in anyone’s employment status in advance and in writing.  In fact, some states and municipalities require advance notice of any change in terms of employment. This would also be true for any employer contemplating reducing compensation; always put in in writing in advance. Additionally, these terms may have special significance under the provisions of your benefit plans, such as Group Medical Insurance.  Before making any change in your employees’ status make sure you use the correct terminology for your particular plans.

Updated Response Based On April 1, 2020 DOL Regulations: Regardless of whether an employee is furloughed or laid off, they are not eligible for either EPSL or EFMLA if they are not otherwise employed on the day they request any such leave.  

No. 45: If I furlough, but not terminate an employee with the hopes of recalling them as soon as the pandemic is over, will they still be eligible for unemployment compensation?

Probably.  Whether furloughed employees are eligible for unemployment compensation varies by state. However, many states have relaxed their standard requirements in response to COVID-19.  Further, the CARES Act has temporarily resolved this issue by extending unemployment benefits to those who may not be eligible at the state level.  Generally, as long as the individual’s unemployment is connected to the COVID-19 outbreak, and they meet other eligibility criteria, they will be eligible for benefits. Furloughed employees may qualify under applicable laws, as do part-time workers, freelancers, independent contractors, and the self-employed.

Updated Response Based On April 1, 2020 DOL Regulations: Note that any employees recalled prior to December 31, 2020 will be eligible for EPSL, which has no length-of-tenure requirement.  In addition, employees recalled prior to December 31, 2020 will be eligible for EFMLA immediately upon return to work, if the furlough or layoff commenced on or after March 1, 2020, and assuming they have worked at least 30 days for the employer in the 60 days prior to the date of the layoff/furlough.  Alternatively, employees recalled who don’t meet that benchmark may become eligible for EFMLA if they work for 30 calendar days prior to the date they request the leave. 

No. 47: If my State has a Shelter-in-Place, Stay-in-Place, or Safer-at-Home (SiP) Order, does that mean that my employees are entitled to paid sick leave (PSL) benefits under the Families First Coronavirus Response Act?  

No.  According to the Department of Labor Guidance (DOL Q&A Nos. 23-25), if your business closes (and you therefore send your employees home) due to slow work conditions or because of a State SiP Order, employees are not entitled to FFCRA benefits; rather, employees may apply for unemployment insurance benefits through their State Unemployment Compensation Department.  The key to understanding the FFCRA benefits from the DOL’s perspective is as follows:  If the employer remains open for business, and the employee is required to be at home due to one of the reasons outlined in the Act, and the employee cannot perform any of his/her duties and responsibilities from home (i.e., teleworking), then FFCRA benefits are generally available. 

Updated Response Based On April 1, 2020 DOL Regulations: The regulations clarify that, if an employer does not have work for the employee due to a SiP Order, then EPSL is not available.  However, note that if an employee is off work to care for an individual who is quarantined due to an SiP Order, the employee cannot otherwise telework, and the employer has work for the employee to do, then EPSL may be available to the employee.  Note also the broad definition of “individual” for whom the employee cares, as addressed in our Updated Response to FAQ No. 40.

No. 49: How does one calculate the amount of the benefit provided to employees for PSL and paid EFML (expanded family medical leave) under the FFCRA?

First, an employer must know the employee’s “regular rate.”  The employee’s regular rate is average of the employee’s regular rate of pay over a period of up to six months prior to the date on which leave is taken.  For employees who are paid with commissions, tips, or piece rates, these amounts are incorporated into the calculation to the same extent they are included under regular rate determinations for the Fair Labor Standards Act. 

Second, PSL is paid at the employee’s average regular rate for up to 80 hours.  This amount is capped, however, at no more than $511/day and $5,110 for the entire 80-hour period.  And, EFML is paid at 2/3rds of the employee’s average regular rate of pay for up to 10 weeks.  The caps for EFML are $200/day or $10,000 for the entire 10-week period.

Updated Response Based On April 1, 2020 DOL Regulations: The regulations confirm this calculation method is the correct method. See 29 C.F.R. 826.21 and 826.22.  

No. 50. If I provided my employees with paid leave prior to April 1, am I able to take a tax credit for the amounts provided?

No.

Updated Response Based On April 1, 2020 DOL Regulations: Note, however, our Updated Response to FAQ No. 45, addressing EPSL/EFMLA eligibility should a previously laid off/furloughed employee be recalled after April 1, 2020 and before December 31, 2020.

No. 53. If I have laid off employees already, but want to bring them back in order to apply for CARES Act financial support, how do I do that?

See the discussion to the prior question (No. 52) and determine under which loan program you are eligible and offer positions back to your furloughed/laid off employees as set forth above.  If you are not restoring the entire workforce, ensure that your decisions are made based on legitimate, nondiscriminatory business reasons that you can support if challenged. 

Updated Response Based On April 1, 2020 DOL Regulations: Note our Updated Response to FAQ No. 45, in which we address possible EPSL/EFMAL eligibility should a recall occur between April 1, 2020 and December 31, 2020.