Rina RussoApril 20, 2020 

The United States Department of Labor (DOL) has issued temporary regulations interpreting the Families First Coronavirus Response Act (FFCRA). The temporary regulations cover many topics in 125 pages, and this client alert seeks to summarize some of the main points of the regulations.

Covered Employers

Private employers with fewer than 500 employees and most public employers of any size must provide emergency paid sick leave (EPSL) and emergency family and medical leave (EMFL) to eligible employees. The DOL will measure the employee count at the time the employee’s leave is to be taken. Therefore, if the employer has 499 employees at the time of an employee’s leave request, but subsequently hires additional employees that puts the total employee count over 500 employees, the employer must still provide the leave to that employee.

In calculating the number of employees, employers must include full-time and part-time employees, employees on leave, temporary employees who are jointly employed with the employer, and day laborers supplied by a staffing agency. Employees included in the count must be employees working in the United States – employees working outside the country are not counted.

Required Documentation

Prior to being able to take EPSL or EFML, employees requesting the leave must provide:

  • The employee’s name
  • The dates for which the employee requests leave
  • The qualifying reason, and
  • An oral or written statement that the employee is unable to work because of the qualifying reason

Additionally, the DOL has outlined the type of information employees must provide in support of the different types of leave under EPSL and EFML:

  • An employee subject to a federal, state, or local quarantine or isolation order related to COVID-19 must provide the name of the governmental entity that issued the order.
  • An employee whose health care provider has advised him/her to self-quarantine due to concerns related to COVID-19 must provide the name of the health care provider who advised the employee to self-quarantine.
  • An employee who is caring for an individual who is subject to a quarantine or isolation order, or an individual who has been advised by a health care professional to self-quarantine, must provide either the name of the governmental entity that issued the order or the name of the health care provider who advised the individual being cared for to self-quarantine.
  • An employee who is caring for a child whose school or daycare is closed or childcare provider is unavailable due to COVID-19 must provide: the name of the child; name of the school, daycare, or childcare provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the child during the period of leave requested.

In addition to the above information, the DOL refers to the IRS guidance that requires the employer obtain and retain additional information to obtain a tax credit for the leave.

Not Retroactive

Leave under the FFCRA is not retroactive prior to the effective date of the statute, April 1, 2020. Accordingly, any paid leave employers provided employees prior to April 1, 2020 for FFCRA-qualifying reasons will not count towards an employee’s entitlement to leave under the FFCRA. Further, employers do not need to retroactively pay employees for time off work prior to April 1, 2020 that would have otherwise qualified for FFCRA leave.

Laid Off and Furloughed Employees Not Eligible for Leave

Otherwise eligible employees of covered employers who are laid off or furloughed are not eligible for emergency paid sick leave or emergency family and medical leave.

Employees That Can Be Excluded From Leave

Otherwise covered employers can exclude otherwise eligible employees if those employees are health care providers or emergency responders.

The rule defines “health care provider” 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.”

The rule defines “emergency responder” to include “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.” The rule also provides the following non-exhaustive list of the types of jobs that will be considered “emergency responders”: “military or national guard, law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”

Use of Intermittent Leave Restricted

The DOL has limited the use of FFCRA leave to only apply to leave granted on the basis of the employee’s need to care for a child whose school or daycare is closed or whose childcare provider is unavailable due to COVID-19.  Even in that case, intermittent leave will only be granted where the employee and employer agree to use of intermittent leave. Accordingly, intermittent leave cannot be used for any of the other qualifying reasons for leave under the FFCRA, except in the case of telework, where intermittent leave is available for teleworking employees taking leave under the FFCRA for all reasons, provided the employer and employee agree to allow intermittent leave usage.

Small Business Exemption

The regulations also provide that an employer with 49 or fewer employees can be exempt from providing FFCRA leave for childcare reasons when allowing such leave would jeopardize the viability of the business as a growing concern.  To use this exemption, an authorized officer of the employer must make the determination that:

  • The leave requested 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(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities.
  • There are no 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 leave, and the labor or services are needed for the small business to operate at a minimal capacity.

To elect this exemption, the employer must document that an authorized officer of the employer made this determination and retain that record. Employers should be extremely cautious in applying the exemption and be prepared to address how it determined the exemption applied in each leave request scenario.

Questions and Answers

In addition to the temporary regulations, the DOL has been updating its “Questions and Answers” related to FFCRA. As the DOL has been updating and revising its guidelines as time goes on, employers should check back often to see if there is any new guidance.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.