With the effective date of the Families First Coronavirus Response Act (FFCRA) looming, the Department of Labor (DOL) on Saturday, March 28, 2020, issued critical new guidance for employers struggling with how to implement the new requirements. The guidance, “Families First Coronavirus Response Act: Questions and Answers,” can be found here, and includes details on counting hours for part-time workers, how to account for overtime, rates of pay, and the interaction between sick leave and expanded family and medical leave for those caring for their child whose school or place of care is closed.
It is important to note that FAQs may be considered by courts as informal guidance that do not have the force of law or regulations, which have not yet been issued by the DOL.
A few highlights:
– The guidance clarifies that the FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
– If an employer furloughs an employee because it does not have enough work or business, the employee is not entitled to then take paid sick leave or expanded family and medical leave. (However, the employee may be eligible for unemployment insurance benefits. Employees should contact their state workforce agency or state unemployment insurance office for specific questions about eligibility.)
– If an employer closes after April 1, but is planning to reopen at some time in the future, employees cannot receive paid sick leave or expanded family medical leave while the worksite is closed, even if it is closed for only a short time. Instead, employees may be eligible for unemployment insurance benefits during the time of closure.
– If an employer reduces an employee’s scheduled work hours because it does not have enough work, the employee cannot use paid sick leave or expanded family and medical leave for the hours they are no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.
– If an employer provides paid sick leave or expanded family and medical leave, an employee is not eligible for unemployment insurance for that time. (However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States to extend partial unemployment benefits to workers whose hours or pay have been reduced.)
– The guidance very broadly defines “health care providers,” who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA. A“health care provider” is 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes (1) any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility, (2) anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments, and (3) any individual that the highest official of a state or territory determines is a health care provider necessary for that state’s or territory’s response to COVID-19. (Importantly, to minimize the spread of the virus associated with COVID-19, employers are being encouraged to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.)