Fourth Set of FFCRA FAQs from DOL

On April 5, 2020, the U.S. Department of Labor (DOL) issued additional “Frequently Asked Questions” related to the Families First Coronavirus Response Act (FFCRA) following its April 1, 2020 effective date (Numbers 60-79). The DOL previously provided guidance discussed here: U.S. Department of Labor Publishes Guidance for Paid Sick Leave and Paid FMLA Compliance, Additional Guidance for FFCRA Paid Sick Leave and Paid FMLA Compliance, and U.S. Department of Labor Issues More Guidance in Advance of FFCRA’s April 1, 2020 Effective Date.

The following are some important highlights from the latest guidance provided by the DOL:

Eligibility for Paid Sick Leave

In this latest guidance, the DOL has clarified that employees may not take paid sick leave under the FFCRA if they unilaterally decide to self-quarantine for an illness absent medical advice or a government order, even if they have COVID-19 symptoms.

Employees also may not take paid sick leave under the FFCRA if they become ill with an illness not related to COVID-19 (they may take leave following medical advice if they experience a “substantially similar” condition, though this has not been defined).

Care for Children 18 and Older

An employee may take paid sick leave and expanded family and medical leave to care for a child 18 years or older with a disability, who cannot care for him or herself due to that disability, if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result.

Additional Guidance on School & Place of Care Closures or Lack of Care

If a child’s school or place of care has moved to online instruction or to another at-home model, it is deemed closed for purposes of paid sick leave and expanded family and medical leave.

Employees may take paid sick leave or expanded family and medical leave to care for children only when they need to, and actually are, caring for their children and are unable to work or telework as a result of providing such care. Generally, employees do not need to take such leave if a co-parent, co-guardian, or usual child care provider is available to provide the requisite care.

Considerations for Staffing Companies

Regardless of how internal or staffed workers are classified and counted, a staffing company must provide paid sick leave and expanded family and medical leave to workers who are its “employees” for purposes of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. If a joint employer, all employees on the payroll must be included, even if they are provided or referred to other employers.

Seasonal/Irregularly Schedule Employees

The DOL has provided steps for calculating the daily amount to be paid to a seasonal employee:

1. Calculate how many hours of leave the seasonal employee is entitled to take each day. This is equal to the average number of hours each day that he or she was scheduled to work over the period of employment, up to the last six months.
2. Calculate the seasonal employee’s regular hourly rate of pay by adding all wages paid over the period of employment, up to the last six months, and then dividing that sum by the number of hours actually worked over the same period.
3. Multiply the daily hours of leave (first calculation) by the employee’s regular hourly rate of pay (second calculation) to compute the base daily paid leave amount.
4. Determine the actual daily paid leave amount, which depends on the type of paid leave taken and the reason for such paid leave. This may be the full base daily paid leave amount (up to $511 per day and $5,110 in total) or 2/3 of the base daily paid leave amount (up to $200 per day and $2,000 total). Note that if the seasonal employees are not scheduled to work, they do not have to be provided paid sick leave or expanded family and medical leave.

FFCRA Leave and Workers’ Compensation or Temporary Disability Benefits

In general, employees may only take paid sick leave or expanded family and medical leave if they are able to return to light duty prior to taking leave for a qualified reason. Otherwise, these benefits are not cumulative.

Employer-Approved Leaves of Absence

If the leave of absence is voluntary, an employee may end the leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA for a qualifying reason preventing them from being able to work (or telework). An employee may not take paid sick leave or expanded family and medical leave under the FFCRA if the leave of absence is mandatory. However, such an employee may be eligible for unemployment insurance benefits.

DOL Status of Enforcement

The DOL will not bring enforcement actions against any employer for violations of the FFCRA occurring within 30 days of its enactment (March 18 – April 17) provided that the employer has made reasonable, good faith efforts to comply with the Act. If the employer violates the Act willfully, fails to provide a written commitment to future compliance with the Act, or fails to remedy a violation upon notification by the DOL, the DOL may exercise its enforcement authority during this period. After April 17, 2020, the DOL will fully enforce violations of the Act and will retroactively enforce violations back to the effective date of April 1, 2020 if employers have not remedied the violations.

The full Department of Labor guidance, including the Frequently Asked Questions issued on April 5, 2020 (numbers 60-79) can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions