New Regulations for the FFCRA
On April 1, 2020, the Department of Labor (“DOL”) announced new action regarding how American workers will benefit from the Families First Coronavirus Response Act (“the “Act”). The new regulations will help implement the Public Health Emergency Leave (“Emergency FMLA Leave”), and Emergency Paid Sick Leave (“Paid Sick Leave”) benefits available under the Act. The new regulations take immediate effect and will expire on December 31, 2020.
Please see the link if you need more information from the DOL. DOL Website
Once again, the Act covers private employers with fewer than 500 employees (and certain public employers); and provides varying amounts of paid leave in the form of Emergency Paid Sick Leave (PSL) and Emergency Family and Medical Leave (EFML).
Six qualifying reasons that will trigger PSL or EFML (or both) obligations
The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (PSL only).
A health care provider has advised the employee to self-quarantine related to COVID-19 (PSL only).
The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis (PSL only).
The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2) (PSL only).
The employee is caring for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons (PSL and EFML).
The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services (PSL only).
What are some practical points that have changed regarding FFCRA?
EFML qualifications, an employee can only take EFML for Qualifying Reason #5, which means that the employee is caring for a child whose school closed and no childcare is available due to COVID-190. This is the only qualification that will be accepted.
The employee is NOT eligible for EPSL/EFML IF THE EMPLOYER HAS NO WORK FOR THE EMPLOYEE – examples of having no work for employees:
Economic downturn, employer has no customers
Employee(s) on furlough
Employer is a non-essential business, and employee’s state’s or work state’s “Essential Business Order” has ordered that NO work/telework can be done at all by non-essential businesses
Employer is a non-essential business, and ‘Essential Business Order’ says employees of non-essential businesses can telework, but employee’s job cannot be performed at home
3. EPSL Qualifying Reason 1 (there is NO EFML for QR 1) isolation/quarantine/stay at home/shelter in place orders, if the employer is an essential business per an order and HAS work available for employees, the employee would only be entitled to EPSL if for some reason the order caused the employee to be unable to work or telework (e.g., Order says immunocompromised citizens should stay at home – if an immunocompromised janitor of an essential business now cannot travel to work per such order, janitor cannot telework, and thus is eligible for EPSL Qualifying Reason 1. If you, as the employer, cannot have employees work as a result of the order, then there is no work available for the employee, and therefore, they are NOT entitled to EPSL under Qualifying Reason 1.order caused the employee to be unable to work or telework (e.g., Order says immunocompromised citizens should stay at home – if an immunocompromised janitor of an essential business now cannot travel to work per such order, janitor cannot telework, and thus is eligible for EPSL Qualifying Reason 1. If you, as the employer, cannot have employees work as a result of the order, then there is no work available for the employee, and therefore, they are NOT entitled to EPSL under Qualifying Reason 1.
Other Important Points to note:
• Documentation: Employers may not require more documentation from employees but ask for the provider/service. For instance, employers may not request a doctor’s note or an official notice from a closed school or daycare but can ask for the name of the provider or facility.
• Childcare Provider: The definition of childcare providers includes anyone who generally cares for the children in question. This includes individuals paid to provide childcare, like nannies, au pairs, and babysitters, as well as individuals who provide childcare at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or a neighbor.
• Reasons for Self-Quarantine: Employees are only eligible for emergency paid sick leave (EPSL) if a health care provider directs or advises them to self-quarantine because the health care provider believes the employee may have COVID-19 or is particularly vulnerable to COVID-19.
• EPSL due to Stay-at-Home Orders: In some narrow circumstances, an employee who is subject to a stay-at-home order may be able to receive EPSL. They will only be eligible if the business is open and has work for them to do, but a stay-at-home order that applies specifically to them as an individual prevents them from working. For instance, if the retail store where an employee works as a cashier is still open, but the employee is over 65 and subject to an executive order from their governor that all people over 65 should stay home, they would be eligible for EPSL.
• Exempt Healthcare Workers: The exemption for healthcare workers is optional and the DOL encourages employers to be judicious in denying leave (if someone is sick with something that looks like COVID-19, you are encouraged to provide them leave anyway, even if they could be exempted). Healthcare facilities should still post the Employee Rights Poster required by the FFCRA.
• Limited Small Employer Exemption: Although this is not new information, we want to reiterate that small employers are only potentially exempt from the childcare leaves provided by EPSL and emergency Family and Medical Leave Act (EFMLA) leave. For instance, one reason for exemption is that providing leave would cause the employer to cease functioning at a minimal capacity. If a single employee asks for intermittent childcare leave one day per week, but can telework the other four days, that is very unlikely to be a financial burden that causes the employer to cease operations. It would, therefore, be inappropriate (or illegal) for an employer to announce that they will not be considering or granting any childcare leaves.
The COVID-19 pandemic presents an unprecedented and still-evolving landscape for employers. BlueFire HR is here to help, we are in this together. Contact us for any questions or forms you might need to implement these new regulations.