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04.06.2020 | Legal Advisory

The U.S. Department of Labor issued a Temporary Rule on April 1 providing further guidance with respect to the paid leave available under the Families First Coronavirus Response Act (the “FFCRA”). You can find the Temporary Rule here. 

In general, and as explained in our earlier advisories, U.S. Department of Labor Issues Guidance on Paid Sick Leave and FMLA and President Trump Signs the Families First Coronavirus Response Act, the FFCRA requires employers with fewer than 500 employees to provide two different types of paid leave to employees that are impacted by the current COVID-19 pandemic:

• Paid Sick Leave. An eligible employee must be provided up to two weeks of Paid Sick Leave at either full or partial pay, depending on the reason for leave and up to applicable caps, if unable to work due to certain specified COVID-19-related reasons.
• Expanded FMLA Leave. An eligible employee who cannot work because of child care needs resulting from COVID-19 school closures or child care unavailability is entitled to an Expanded FMLA leave of up to 12 weeks, the last 10 of which are paid at two-thirds of the employee’s regular rate of pay, up to an applicable cap.

The Temporary Rule answers some of the most commonly asked questions about the two types of leaves. Some of the subjects addressed are summarized below.

Interaction of FFCRA Paid Leave with Other Employee Leave

The Temporary Rule makes clear that FFCRA Paid Sick Leave and Expanded FMLA Leave interact differently with other types of leaves offered by employers.

Paid Sick Leave is an additional employee benefit to supplement the employer’s general leave policies. Therefore, employers cannot require employees to use other available paid leave (such as vacation or earned sick days) before using their FFCRA Paid Sick Leave. 

However, if permitted by an employer’s existing FMLA policy, an employer may require employees to use their Expanded FMLA leave concurrently with available vacation, personal time, or paid time off. Further, the Expanded FMLA Leave used by an employee counts toward the 12 weeks of general FMLA leave to which the employee may be entitled to in a 12-month period.

The Temporary Rule also confirms that an employee may use the FFCRA Paid Sick Leave during the first two weeks of his or her Expanded FMLA Leave that would otherwise be unpaid.

Paid Sick Leave Is Not Available When the Business Lacks Work for the Employee

Employers frequently ask if employees can take Paid Sick Leave while the business is closed due to lack of business from COVID-19. The Temporary Rule makes clear that employees cannot take FFCRA Paid Sick Leave when an employer does not have work for the employee, even if the lack of work is because of COVID-19. The DOL provides an example that if a coffee shop closes due to the lack of business, the cashier at the shop, who may be subject to a quarantine or isolation order, is not eligible for FFCRA Paid Sick Leave because his or her inability to work is not “but for” the quarantine or isolation order.  

Both Parents May Not Take Paid Leave Simultaneously

Whether both parents may take Paid Sick Leave or Expanded FMLA leave simultaneously to care for a child whose school is closed had been a subject of employer uncertainty. The Temporary Rule makes clear that employees are not eligible for FFCRA Paid Sick Leave or Expanded FMLA leave if a co-parent or co-guardian is available to provide care for the employee’s children. When requesting leave, employees must provide a signed statement that no other suitable person is available to care for their child(ren) during the requested period of leave. However, DOL guidance clearly allows intermittent leave to care for a child whose place of care is closed and DOL encourages employees and employers to develop flexible work arrangements in such circumstances. Accordingly, employed co-parents may arrange to alternate their use of intermittent leave, should their respective employers agree. 

The Small Business Exemption Is Narrow

The Temporary Rule provides a detailed explanation of how a small business with fewer than 50 employees may be exempt from complying with certain FFCRA paid leave requirements. First, the exemption only applies if leave is requested because the employee must care for his/her child whose school or place of care is closed due to COVID-19, and the leave would jeopardize the viability of the employer’s business. In order to demonstrate that the employee’s leave would jeopardize the viability of the business, an authorized officer of the business must determine that:

• Allowing such leave would cause the employer’s expenses and financial obligations to exceed available revenues and force the business to cease operating at a minimal capacity;
• The employee’s absence creates a substantial risk to the financial health or operational capabilities of the employer because of that employee’s specialized skills, knowledge of the business, or responsibilities; or
• There are insufficient able, willing, and qualified workers to perform the labor or services provided by the employee and needed to operate at a minimal capacity.

The employer cannot automatically deny leave to all employees. For each request, the small employer must document the facts, circumstances, and its reasoning for denying that individual leave request under the exemption and retain all records. All employers subject to the FFCRA are required to retain all FFCRA documentation for four years, regardless of whether FFCRA leave was granted or denied.

Employees Must Provide Reasonable Notice and Appropriate Documentation

Employees must provide reasonable notice to their employers if they need to use FFCRA leave. The notice must be provided as soon as practicable after an employee’s first workday missed. If the employee fails to provide proper notice, the employer should notify the employee and allow the employee an opportunity to provide the required documentation prior to denying the request for leave. 

Employee documentation must include a signed statement with: (1) the employee’s name; (2) dates for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework. Certain COVID-19 qualifying reasons require additional documentation. For example, for leaves requested to care for a child whose school is closed, the employee must provide the name of the child, the name of the closed place of care, and a statement that no other suitable person is available to care for the child.

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The Temporary Rule addresses several other issues relating to FFCRA paid leaves, including the calculation of the correct rate of pay for part-time workers and guidance for determining whether a business employs fewer than 500 employees. If you have questions about this or any other matters arising under the FFCRA, please do not hesitate to contact any member of Nutter’s Labor, Employment & Benefits team.

This advisory was prepared by Chris Lindstrom, Liam O’Connell, and David Rubin in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact Chris, Liam, or David; or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.