The Top 10 Things You Need to Know About the FFCRA
On April 7, 2020, the Department of Labor Wage and Hour Division (WHD) provided guidance on the recently enacted Families First Coronavirus Response Act (FFRCA). FFCRA is divided into 8 sections but the recent guidance focused specifically on the paid leave provided by Section C: Emergency Family and Medical Leave Expansion Act (EFMLEA) and Section E: Emergency Paid Sick Leave Act (EPSLA). Here are the top 10 things you need to know:
- It is Temporary. FFCRA is temporary! The legislation went into effect on April 1, 2020, and is NOT retroactive. The paid leave created will end on December 31, 2020, and cannot be carried over by employees if unused. EFMLEA does not provide an additional 12 weeks of leave on top of the 12 weeks provided in the FMLA. Employees are only entitled to EPSLA one time, regardless of whether the employee leaves and works for another employer.
- Exclusion of Health Care Providers & Emergency Responders. Qualified employers may elect to exempt health care providers & emergency responders from entitlement to leave under EFMLEA and EPSLA. The WHD’s definition of health care providers and emergency responders is very broad.
- Health Care Providers are defined broadly as 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 provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.
- Emergency responders are defined broadly as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or others need for the response to 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, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency.
- Work Means Work (and Telework). In order for either EMFLEA or EPSLA to be triggered the employer must have work available for the employee to perform. An eligible employee will not be entitled to paid leave if:
- the employer has work for the employee to perform;
- employer permits employee to perform that work from the location where employee is being quarantined or isolated; and
- no extenuating circumstances prevent employee from performing that work. Extenuating circumstances might include things like power outages that prevent internet connection or serious COVID-19 symptoms that prevent employee from working. If the employer has closed (even temporarily) employee will not be entitled to paid leave under either provision because no work is available.
- Quarantine or Isolation Order. These might include a broad range of governmental orders.
- Children, Child Care Providers, and Places of Care. Includes biological, adopted, or foster children, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who are incapable of self-care because of mental or physical disability. Places of care include any physical location in which care is provided including but not limited to day care facilities, preschools, before and after school care programs, schools, homes, summer camps, and summer enrichment programs.
- Intermittent Leave. One basic condition applies to all employees who seek to take their paid sick leave or expanded family and medical leave intermittently – they and their employer must agree. Where an employer and employer agree that the employee may take intermittent leave, they must also agree on the increments of time in which leave may be taken.
- Exemptions for Small Employers. There are exemptions for small employers to deny paid sick leave or expanded family and medical leave to an otherwise eligible employee. The small employer must document the facts and circumstances that meet the criteria for this denial. The showing is the same under both EFMLEA & EPSLA.
- An employer with fewer than 50 employees may obtain an exemption from providing leave if the employer demonstrates that providing such leave would jeopardize the viability of the business as a going concern.
- Furlough v. Layoff v. Termination. Furlough is a mandatory, temporary, unpaid leave, and the worker remains an employee. Layoff is a full separation from the company, and the employee is no longer an employee. A layoff implies that if/when the conditions which led to the employee’s separation from the employer change and that the employee will be recalled (rehired) if the position/work is needed. Termination is the end of an employee’s relationship with the employer and can be voluntary (resignation) or involuntary (dismissal). If a business is open but lays off part of its workforce, employees who are laid off or furloughed are not entitled to leave under FFCRA.
- Notice and Documentation. All covered employers are required to post and keep posted a notice of FFCRA’s requirements. A model notice is available for download by employers, free of charge, from the WHD website at https://www.dol.gov/whd. To satisfy this requirement employers may post the notice in a conspicuous place at a jobsite, distribute the notice by email (if employees are teleworking or the jobsite is otherwise closed), post the notice electronically on an employee information website, or mail the required notice to any employees who are not able to access the information at the worksite, through email, or online. Employers should retain documentation of requests for paid leave for 4 years (regardless of whether leave is granted or denied).
- Retaliation & Anti-Discrimination. An employer is prohibited from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave under the EPSLA, because the employee filed any complaint or instituted or caused to be instituted any proceeding under or related to the EPSLA, or testified or is about to testify in any such proceeding. The FMLA’s general prohibitions on interference with rights and discrimination apply to EMFLEA. FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether leave was taken.
If you have additional questions regarding the Families First Coronavirus Response Act or would like help preparing compliant forms, please contact a member of the Teague Campbell Employment Law team.
This update provides general information and does not provide tailored legal advice or establish an attorney-client relationship.