Untangling Paid Leave Obligations for Small Businesses Under the Families First Coronavirus Response Act and Department of Labor Guidance

The Families First Coronavirus Response Act (“FFCRA”) was enacted March 18 and became effective April 1, 2020. It implemented a number of measures in response to the COVID-19 health crisis, including substantial financial appropriations and assistance with unemployment compensation. For small businesses, the most impactful aspects of the FFCRA are the new paid sick leave and paid family and medical leave obligations that apply broadly to U.S. employers with less than 500 employees. Based upon 2017 Statistics of U.S. Businesses taken from U.S. census data, these paid leave obligations potentially apply to nearly 6,000,000 businesses that collectively employ over 60,000,000 workers. 

The original language of the FFCRA itself raised a number of questions, but the U.S. Department of Labor (“DOL”) has provided additional clarification via Fact Sheets, Question & Answer materials, a Temporary Rule, and temporary Regulations. This article summarizes the FFCRA paid leave obligations incorporating all of the DOL guidance issued to date.  

The FFCRA’s key provisions are as follows:

• It requires up to 80 hours of emergency paid sick leave (“PSL”) for six different COVID-19-related qualifying reasons. Depending upon the reason triggering the leave, PSL is paid either at the employee’s full regular rate of compensation, or two-thirds (2/3) of that regular rate for caregiver or school closure leave.

• It amends the Family and Medical Leave Act to provide 12 weeks of job-protected paid emergency family and medical leave (“EFML”) to employees unable to work due specifically to childcare obligations resulting from a closed school or daycare. The first two weeks of EFML of are unpaid (subject to the employee’s option to substitute PSL), and the last 10 weeks are paid at two-thirds (2/3) of the employee’s regular rate.

• These PSL and EFML obligations apply broadly to nearly every U.S. business with less than 500 employees, with exclusions for healthcare providers and first responders, and very limited exemptions for childcare/school closure PSL and EFML where a business with less than 50 employees can demonstrate that the paid leave obligations “would jeopardize the viability of the business as a going concern.”

• It also provides employers with quarterly tax credits under the Internal Revenue Code equal to 100% of qualified PSL and EFML wages paid, as well as costs associated with continuing health insurance coverage for employees while on leave.

These provisions of the FFCRA are designed to provide immediate paid leave to employees impacted by COVID-19, while creating new tax benefits for employers making those payments. This article addresses the FFCRA’s PSL and EFML obligations, eligibility for such leave, the qualifying needs triggering leave, the calculation and amount of leave, the limited exemptions to these obligations, and how these dual systems interact with each other and the traditional leave framework under the Family and Medical  Leave Act. This article is not designed to be exhaustive and does not, for example, address how these obligations may apply to public and government employees, or under collective bargaining agreements in unionized workplaces. 

EMERGENCY PAID SICK LEAVE / PSL

• General Eligibility Rules

Division E of the FFCRA generally requires up to 80 hours of emergency paid sick leave for employees who are unable to work or telework due to any of six specific COVID-19-related qualifying circumstances. Depending on the qualifying reason for the leave, PSL is paid in various amounts, at differing wage rates, and subject to different daily and aggregate maximum limits. These obligations went into effect on April 1 of this year and do not apply retroactively before that date. The PSL obligations are scheduled to automatically sunset after December 31, 2020.

PSL obligations apply to all private employers with fewer than 500 employees within the U.S., calculated as set forth in the Miscellaneous section below. All employees employed by these businesses within the U.S. are immediately eligible for PSL, regardless of the length of their employment.

An employee is eligible for PSL where they are unable to work or telework due to any of these six qualifying reasons:

1. The employee is subject to a federal, state or local COVID-19 quarantine or isolation order;
2. The employee is subject to a COVID-19 self-quarantine as advised by a health care provider;
3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. The employee is caring for another individual who is subject to a federal, state, or local quarantine or isolation order, or health care provider advised self-quarantine;
5. The employee is caring for a son or daughter because the child’s school or daycare has been closed due to COVID-19 precautions;
6. The employee is experiencing “any other substantially similar condition” specified by the U.S. Secretary of Health and Human Services.

Employees are not entitled to PSL for unilaterally deciding to self-quarantine without seeking medical advice. Eligibility for leave based on caregiving for another individual who is subject to quarantine is generally limited to immediate family members, those regularly residing with the employee, and those who have a relationship with the employee that creates an expectation of care.

As of the date this article was published, the U.S. Health & Human Services Secretary has not identified any additional or “similar conditions” that would trigger eligibility for PSL under the sixth reason listed above.

• Calculation of PSL Amounts and Limits

The amount of PSL an employee may receive depends upon their typical work schedule. In general, eligible employees should receive PSL for the number of hours they “would otherwise be normally scheduled to work.” Full-time employees normally scheduled to work 40 hours a week or more are entitled to 80 hours of PSL. Part-time employees normally scheduled to work less than 40 hours per week are entitled to PSL for the average number of hours they work in a 2-week period.

The rate at which PSL is paid depends upon the qualifying reason for the leave. Where the employee requests leave based upon (1) a government quarantine, (2) healthcare-advised self-quarantine, or (3) COVID-19 symptoms or diagnosis, the employee is paid PSL at their “regular rate” of compensation. Where an employee seeks leave (4) to provide care for another quarantined individual, or (5) for childcare due to school closure, the employee receives PSL at two-thirds (2/3) of their regular rate. Where a part-time employee’s schedule varies so significantly that an employer cannot determine a weekly number of hours, a special calculation is used involving a 6-month look-back period.

Regardless how many hours an employee would normally be scheduled to work, all PSL is subject to daily and aggregate caps based upon the reason leave is requested. Where the employee seeks leave based upon (1) a government quarantine, (2) healthcare-advised self-quarantine, (3) or COVID-19 symptoms and diagnosis, PSL is limited to $511 per day or $5,110 in the aggregate per employee. Where the employee seeks leave (4) to care for another quarantined individual, or (5) for childcare due to school closure, PSL is limited to $200 per day or $2,000 in the aggregate per employee.

• Other PSL Guidance

PSL is not a form of family and medical leave, and PSL generally does not count against traditional FMLA eligibility for 12 weeks of leave, (with the limited exception of where childcare/school closure PSL runs concurrent with an employee’s first two unpaid weeks of EFML as discussed below). PSL is designed to supplement and apply in addition to all other paid leave required by state or local law, or any existing employer policy. It was the clear intent of Congress that PSL be available immediately, and employers are specifically forbidden from requiring employees to use or exhaust other type of paid leave before requesting or using PSL.

The DOL guidance also clarifies a number of situations in which PSL does not apply. For example, PSL does not carry over from one year to the next, and employers are not required to pay for unused PSL upon an employee’s termination, resignation, retirement, or separation, or after the FFCRA expires on December 31, 2020. 

Importantly, an employee subject to a government quarantine or isolation order may take PSL only where the employee would otherwise be able to perform work or telework in the absence of the order. In other words, PSL is not available where the employer does not have work for an employee, either due to quarantine, isolation order, stay-at-home order, shelter-in-place order, or other circumstances. This applies to all qualifying reasons for leave. Similarly, if a company closes a worksite, either before or after the FFCRA’s April 1 effective date, employees are not entitled to PSL or EFML after the date of the closure. This is true regardless of whether the worksite closed for lack of business or pursuant to a governmental directive, and even if an employee requested leave before the closure. The same is true where a business remains open, but the employer furloughs employees for lack of work or reduces scheduled hours without terminating employees. The FFCRA contemplates Unemployment compensation rather than PSL in these circumstances.   

EMERGENCY FAMILY and MEDICAL LEAVE / EFML

• General Eligibility Rules

Per Division C of the FFCRA, private employers with less than 500 employees (and public agencies regardless of the number of employees they employ) must provide paid expanded family and medical leave (“EFML”) to any qualifying employee. A qualifying employee is one who is unable to work or telework due to the need to care for a child (son or daughter) because the child’s school or place of care has been closed or childcare provider is unavailable. This is the only qualifying event for EFML and the same as the fifth qualifying reason for PSL.

A total of 12 workweeks can be taken for this qualifying leave between April 1, 2020 and December 31, 2020. It is available to all full-time and part-time employees who have been employed for at least 30 calendar days. If the employee has been working as a temporary employee and subsequently becomes a full-time regular employee, that employee can count the temporary employment days worked toward the 30-day eligibility period. 

Consistent with existing FMLA regulations, the term “son or daughter” includes a biological, adopted, or foster child, stepchild, legal ward, or child of a person standing in loco parentis who is under 18 years of age, or a child 18 years of age or older who is incapable of self-care because of a mental or physical disability.

Importantly, PSL for childcare due to school closure and EFML are available only if no other suitable person is available to care for the child during the period of leave. If a suitable person – such as a co-parent, co-guardian, or the usual childcare provider – is available, the employee is not eligible for paid leave. Furthermore, to the extent an employee can telework while caring for a child, PSL and EFML are not available.

• Calculation of EFML Amounts and Limits

The first two weeks of EFML are technically unpaid (subject to the employee’s option to substitute PSL or employer-sponsored paid leave), while the remaining 10 weeks must be paid at a rate of two-thirds (2/3) of the employee’s regular rate of pay for 40 hours per week for full-time employees, or for part-time employees, the number of hours the employee is normally scheduled to work over that period. The total EFML payment per employee for this 10-week period is capped at $200 per day and $10,000 in the aggregate, for a grand total of no more than $12,000 when combined with two weeks of PSL.

A part-time employee is entitled to leave for their average number of work hours in a two-week period. Therefore, hours of leave are based on the number of hours the employee is normally scheduled to work. However, if the normal hours scheduled are unknown, or if the part-time schedule varies significantly, a six-month period is used to calculate the average daily hours. 

• Interaction with PSL

As mentioned, the first two weeks of EFML are unpaid; however, employees may choose to take PSL during those two weeks or supplement with other accrued paid leave provided by an employer. For instance, if an employee takes PSL for the first two weeks for qualifying reason #5 (which is the same as EFML), they would receive two-thirds (2/3) of their regular rate of pay. The employee may use – but cannot be required to use – other accrued paid leave to make up for remaining one-third (1/3) of their regular compensation. Where an employee takes PSL concurrently with the first two weeks of EFML, those two weeks do count toward the employee’s 12 weeks of EFML eligibility.

After the first two weeks of unpaid EFML however, employees may elect to take – and employers may require the employee to take – the remaining EFML at the same time as any existing paid leave that would be available to the employee under the employer’s existing paid leave policies. If any employer requires an employee to take existing leave concurrently with the expanded EFML, the employer must pay the full amount to which the employee is entitled under the employer’s existing paid leave policy for the period of leave taken, and the employer is not entitled to a tax credit for payment of any leave exceeding the limits for EFML.

Bottom line – an employee can choose (but cannot be required) to take company accrued paid time off concurrent with PSL, but the employer can require an employee to take accrued paid time off concurrent with EFML.

• Interaction with Traditional FMLA

Under the traditional system established in 1993 by the Family & Medical Leave Act (“FMLA”), eligible employees are entitled to 12 workweeks of unpaid leave during a 12-month period for certain qualifying reasons like a serious health condition, the birth or adoption of a child, the need to care for a close family member with a serious health condition, and the like.

The FFCRA essentially adds a sixth reason to the FMLA’s traditional list of qualifying reasons for leave, but it does not otherwise make all employees eligible for traditional FMLA leave for the original 5 reasons. The FMLA also contains a number of eligibility requirements that do not apply to EFML. For instance, to be EFML eligible, an employee need only be employed for 30 days (not the usual one year and 1,250 hours).

An employee’s eligibility for EFML also depends on how much FMLA leave the employee has already taken during the 12-month period generally used by the employer. The DOL has clarified that EFML does not change the overall amount of FMLA leave employees can take during a normal 12‑month period. For example, if an employee took three weeks of FMLA leave in January 2020 to recover from a serious health condition, they would only be entitled to take up to nine remaining weeks of EFML. Conversely, if an employee has not taken any FMLA leave and elects to take all 12 weeks of EFML to care for children due to school closure, that employee will not be entitled to any additional FMLA leave for the remainder of the 12-month period. Employees are limited to a total of 12 weeks of EFML even if the applicable time period (April 1–Dec. 31) spans two 12-month leave periods designated under the FMLA. 

• EFML Job Protection and Return to Work

FFCRA generally requires employers to provide the same or equivalent job to an employee returning to work following PSL or EFML with some limited exceptions. However, employees are not protected from employment actions that would have affected them regardless of whether they took leave. For example, an employee who is on leave can be laid-off for legitimate business reasons, such as closure of a worksite. The employer must be able to demonstrate that the employee would have been laid-off even if they had not taken leave.

This job-protection obligation may be modified for employers with fewer than 25 employees, if certain conditions are met, including the elimination of the employee’s position due to COVID-19-related economic conditions and the employer’s “reasonable efforts” to notify or reinstate the employee during certain specified periods. An employer may also refuse reinstate highly compensated “key” employees as defined in the FMLA. Notably, specific advance notice to such employees is required.

FFCRA EXCLSUIONS and SMALL BUSINESS EXEMPTION

The FFCRA provides broad exclusions for health care providers and emergency responders from all forms of PSL and EFML, as well as a limited exemption from childcare/school closure leave for employees of small businesses with fewer than 50 employees.

• Health Care Providers and Emergency Responders

The DOL regulations state that employers who employ “health care providers” or “emergency responders” may exclude such employees from PSL or EFML. The regulations clarify who qualifies as a “health care provider” and an “emergency responder” and make clear these terms are construed broadly.

For purposes of this exclusion, a “health care provider” is anyone employed at any doctor’s office, hospital, health care center, clinic, 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 definition also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operations, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. 

An “emergency responder” is any employee who is necessary for the provision of transport, care, health care, and comfort of patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, and public works personnel, as well as individuals who work for such facilities. The highest official of a state may also determine that additional individuals fall within the definitions of “health care provider” or “emergency responder” if necessary for that state’s response to COVID-19.

• Small Business Exemption

The FFCRA allows the Secretary of Labor to exempt qualifying small businesses with less than 50 employees from providing PSL or EFML to care for children whose school or childcare is closed, if doing so “would jeopardize the viability of the business as a going concern.” The Secretary has exercised this authority and provided guidance that a qualifying small businesses may deny leave under this exemption – without further process or authorization from the DOL – if an authorized officer of the business determines any of the following:

1. The leave would cause expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
2. The absence of the employee(s) requesting leave would pose a substantial risk to the employer’s financial health or operational capacity because of their specialized skills, knowledge of the business, or responsibilities; OR
3. The employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee requesting leave provides, as needed for the employer to operate at a minimal capacity.

If leave is denied, the business must document the facts and circumstances warranting the denial. An employer need not send this information to the DOL, but must retain those materials for a period of four years. 

MISCELLANEOUS PROVISIONS and ADDITIONAL GUIDANCE

• Determining Whether an Employer has Fewer than 500 Employees

The FFCRA requires all private employers with fewer than 500 employees to provide PSL and EFML to their eligible employees. The FFCRA does not distinguish between for-profit and non-profit entities – both must provide paid leave if they otherwise meet the requirements for coverage. 

For the purposes of both PSL and EFML, this critical number of employees is determined at the time the employee would take leave. Obviously, that number can fluctuate depending upon hiring, lay-offs, and the like, possibly taking the employer into or out of FFCRA coverage at different points in time. The DOL Regulations provide a helpful example:

[I]f an employer has 450 employees on April 20, 2020, and an employee is unable to work starting on that date because a health care provider has advised that employee to self-quarantine because of concerns related to COVID-19, the employer must provide paid sick leave to that employee. If, however, the employer hires 75 new employees between April 21, 2020, and August 3, 2020, such that the employer employs 525 employees as of August 3, 2020, the employer would not be required to provide paid sick leave to a different employee who is unable to work for the same reason beginning on August 3, 2020.

Note though, under the DOL’s example above, the employer is required to continue providing leave for the first employee – despite subsequently hiring additional employees in excess of 500.

The DOL also provided further guidance that in making this determination, employers must include: all full-time employees, part-time employees, employees on leave, temporary employees jointly employed by multiple employers, and day-laborers provided by temporary placement services. Part-time and temporary employees and day-laborers are counted the same as full-time employees for the purpose of determining coverage. Employers are not required to include the following: independent contractors, employees who have been laid-off or furloughed and not yet rehired, and any employees working outside the U.S. or its territories. Neither the FFCRA nor the DOL regulations define a “furloughed” employee. The term has multiple legal definitions in different contexts, and could be interpreted to encompass employees receiving a salary, but not working. Until further guidance is issued, it would be prudent for employers to only exclude employees furloughed without pay from this coverage calculation.

Corporations are generally considered single employers and must include employees across all separate establishments and divisions in the coverage calculation. Even where a corporation has an ownership interest in another corporation, the two are considered separate employers unless they qualify as integrated or “joint employers” under FLSA standards. Determination of integrated or joint status is based on unique and detailed multi-factor tests, and often dependent on the employer’s particular circumstances. Qualifying integrated and joint employers must aggregate certain employees to determine coverage.

• Enforcement

The FFCRA’s PSL obligations are enforced through the Fair Labor Standards Act (“FLSA”). Failure to pay PSL is treated as a minimum wage violation, subject to FLSA penalties of unpaid wages, liquidated/double damages, attorneys’ fees, court costs, and injunctive relief via action by the U.S. Secretary of Labor or a private lawsuit by an employee. The FFCRA also includes an anti-retaliation prohibition against discharging, disciplining, or otherwise discriminating against any employee for taking PSL or filing a complaint or testifying in a proceeding to enforce PSL rights. Willful violations of this anti-retaliation protection are subject to all of the FLSA penalties described above. The temporary Regulations also authorize employees to file administrative complaints directly with the DOL Wage & Hour Division for any violation of PSL or EFML rights.

On the other hand, the FFCRA’s EFML obligations are enforced through the FMLA’s regular enforcement and anti-retaliation provisions. EFML violations are accordingly subject to damages for lost wages, salary, and benefits, double/liquidated damages, attorneys’ fees, expert expenses, court costs, interest, and injunctive relief including reinstatement, via a civil lawsuit by an employee or administrative action by the Secretary of Labor. Notably, employers with less than 50 employees are not subject to private lawsuits by employees for EFML violations.

In its recent Field Assistance Bulletin No. 2020-1, the DOL announced that it will not bring enforcement actions against employers for FFCRA violations within the first 30 days after the law’s enactment (essentially through April 17, 2020), provided employers have made a reasonable good faith effort to comply with the FFCRA. However, the DOL’s temporary forbearance against enforcement action does not limit the ability of individual employees to pursue legal action to protect their FFCRA rights.

• Regular Rate

For purposes of PSL and EFML, the employee’s “regular rate” of compensation is calculated pursuant to the usual FLSA analysis and typically includes commissions, tips, and piece rates. This regular rate is the average of the employee’s regular compensation over a period of up to six months prior to the date leave begins. If the employee has not worked for the employer for six months, the average of the employee’s regular rate of pay for each week she/he has worked for the employer should be used instead.

• Telework

The FFCRA authorizes employers to permit telework at home or some other location outside normal workplace, during or after normal work hours. Employees must be paid their normal compensation for performing such telework, including overtime, but no PSL or EFML compensation is then required.

On the other hand, if an employee cannot work or telework due to childcare needs, then PSL and EFML can be taken. The DOL clarified that if an employer permits teleworking but an employee is unable to telework due to childcare needs (no other suitable person available for childcare), then the employee is entitled to take leave. However, if the employee is able to telework whilecaring for a child, paid leave is not available. This will be a fact-specific analysis.

• Intermittent Use of Leave

Both PSL and EFML may be used intermittently, with some restrictions. The FFCRA borrows language from FMLA regulations on intermittent leave – but modifies it in light of the unique circumstances of the COVID-19 outbreak. The DOL has confirmed that a “basic requirement” of any intermittent PSL or EFML is that the employer and employee agree to such intermittent leave, and the appropriate increments. Without such agreement, no intermittent leave is required. There is no requirement that the employee and employer reduce the agreement to writing, but a best practice would be to document any intermittent arrangement a to prevent future disputes.

Subject to an agreement between the employee and employer, there are no regulatory restrictions on the use of intermittent leave for teleworking employees. However, in order to limit the spread of COVID-19, intermittent leave while working at the employee’s usual worksite is limited to EFML and PSL based upon childcare/school closure. Intermittent leave from the usual worksite is prohibited for the other five PSL qualifying reasons. The DOL provides the following example:  if any employee’s child is at home because the school or place of care is closed, the employee may take paid sick leave on Mondays, Wednesdays, and Fridays, but work at the employee’s normal worksite on Tuesdays and Thursdays.

• Notice Requirements

Employers are generally required to post a Notice of FFCRA rights drafted by the U.S. Secretary of Labor. When PSL or EFML leave is requested, employers may require documentation of specific details substantiating the reason underlying the employee’s request for PSL.

Employees are required to follow the usual notice of leave requirement under the FMLA, which states that employees must notify their employers of the need for leave “as soon as practicable.” After the first day of leave, an employer may require an employee to follow reasonable notice procedures to inform the employer of the need for leave. If an employee fails to give proper notice, the employer should inform the employee of the failure and allow an opportunity to provide required documentation prior to denying the request for leave.

• Health Insurance Benefits

Employer-provided health insurance coverage elected by the employee must be continued during any period of PSL or EFML just as though the employee was continuing to work. Employers may however, require employees to continue providing their share of any applicable premium payments. 

• Required Documentation and Recordkeeping

The DOL regulations provide that if an employee takes EFML or PSL to care for a child whose school or daycare is closed, the statement from the employee should include the name of the child to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving leave.  The employer may request that an employee provide additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA.

Employers must retain all documentation provided by employees for four years, regardless of whether leave was granted or denied.  Employers also must document any oral statements provided by an employee to support the request for leave.  If an employer denies a request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the prerequisite criteria for the exemption are satisfied and retain such documentation for four years.

The regulations also provide guidance to employers that intend to claim tax credits for qualified payments under the FFCRA. The DOL recommends that employers preserve the following documentation for four years in order to support their claim for tax credits: (1) documentation to show how the employer determined the amount of paid leave provided to employees; (2) documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages; (3) any completed IRS Forms 7200 and IRS Forms 941 submitted to the IRS, or records of information provided to a third-party payer regarding the employer’s eligibility for the tax credit; and (4) any other documents requested by the IRS under its applicable guidelines.

Despite seeming somewhat overwhelming, these FFCRA paid leave obligations are manageable with the proper attention to detail. Beyond technical legal compliance, employers must also consider the long term impact personnel decisions may have on their ability to recruit, hire, and retain employees once the current health crisis eases. The attorneys at Reminger stand ready to assist you in navigating the FFCRA and the DOL regulations administering it. If you have questions about how this law applies to your business, please contact a Reminger attorney to discuss the specifics of your situation.