The U.S. Department of Labor (“DOL”) issued temporary regulations (the "Temporary Rule") implementing the Families First Coronavirus Response Act (“FFCRA”). The Temporary Rule clarifies the protections and obligations afforded under FFCRA’s new paid leave laws and builds on earlier guidance issued by the DOL in March 2020.
The Temporary Rule summarizes the rights and relief afforded to eligible employees and covered employers, describes the exemptions under the FFCRA, provides procedural instructions for those requesting leave, and details new notices that covered employers are required to post.
Exemptions From the FFCRA
There are two major exemptions from FFCRA coverage, which were discussed in a previous blog post. The first exemption allows covered employers to exclude those employees who are health care providers or emergency responders from paid sick leave and/or expanded family and medical leave. The Temporary Rule defines a "health care provider" as "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." An "emergency responder" is defined as "an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19." Employers have the option to utilize this exemption at their discretion. The DOL encourages this discretion to be exercised judiciously.
The second exemption from FFCRA coverage is for small businesses (defined as fewer than 50 employees), if an authorized officer of the business has determined that FFCRA compliance would jeopardize the financial viability of the company. Theses determinations must be based on an evaluation of business expenses and revenues, the number of available employees to perform essential operations, and whether the absence of employees with specialized skills or knowledge would pose a risk to the company’s sustainability.
Procedural Instructions for Requesting Leave
In order to obtain FFCRA benefits, the employee requesting leave must submit paperwork to their employer, indicating the requested leave dates, the reason for leave, and a statement that the employee is unable to report to work or telecommute due to COVID-19 reasons. Additionally, if relevant, the employee must identify the health care provider requiring or recommending quarantine for COVID-19. If applicable, the employee requesting leave must identify the school or child care center that is closed due to COVID-19 and the name of the child the employee is caring for. In turn, an employer must retain submitted documents for four years. If leave is denied, the employer must sufficiently document the reasons for the denial.
Regardless of whether an employee has an employment contract, is subject to a collective bargaining agreement, or is at will, the employer cannot deduct the FFCRA paid sick leave from the employee’s accrued paid leave. The employee can choose but is not required to use the FFCRA paid sick leave under FFCRA prior to using any other type of leave to which he or she is already entitled. Although an employer cannot require an employee to first take other available leave prior to taking paid sick leave under the FFCRA, an employer may require or the employee may elect to take other sources of available paid leave concurrently with the FFCRA's expanded family and medical leave to care for a child. If the FFCRA's expanded family and medical leave is used concurrently with another source of leave, the employer is required to pay the employee the full amount he or she is entitled to under the employer’s paid leave policy.
In addition to the FFCRA four-year record keeping requirement, covered employers must now post a notice of the new FFCRA requirements, which include a "no retaliation" provision. Because many employees are now telecommuting, employers can satisfy the posting requirement by sending the notice via email or regular mail or posting the notice on an employee portal or website. The DOL will stay enforcement actions for failure to comply with the new posting requirements until April 17, 2020 as long as the employer has made a good faith effort to comply with the FFCRA.
For more information on the FFCRA's Temporary Rule, please contact CCB Law.