The Department of Labor has issued much needed guidance on the Families First Coronavirus Response Act (FFCRA) which was signed into law last week.

The Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act under the FFCRA is effective as of April 1, 2020 for leave taken between April 1, 2020 through December 31, 2020.

We have summarized some of the additional guidance provided by the Department of Labor for both employers and employees here:

Employers:

Small Business Exemption: If a business has fewer than 50 employees, they may be able to elect the small business exemption if paying the leave under the FMLA Expansion Act would jeopardize the viability of the business as a going concern. To elect the small business exemption, the business should document why the business meets the criteria set forth by the Department of Labor (DOL) which will be addressed in more detail in future regulations. The business should not send any materials to the DOL when seeking the small business exemption.

How to Calculate Hours Worked by a Part Time Employee: To calculate part time employee hours, it should be based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown or if the employee’s schedule varies, the employer should use a six-month average to calculate the average daily hours. If the employee has not been employed for the last six months, use the number of hours that you agreed the employee would work upon hiring.

What Records Do I Need to Keep to Pay Leave to My Employees: The employee must provide documentation in support of the reason for the leave. The documentation should include: employee name, qualifying reason for requesting leave, statement that the employee is unable to work (including telework), and the dates the leave is requested. Documentation should include a quarantine or isolation order or the name of the health care provider for paid sick leave. For paid family and medical leave, documentation should include a notice posted by the government, school or child care provider that it was closed.

May I Require an Employee to Use Paid Leave Under the Company Paid Leave Policy Before Paying Leave Under FFCRA? No. Under the FFCRA, the employee may decide whether to use existing paid time off from the company policy to supplement the amount received from paid sick or family and medical leave. However you can not mandate that time off is used.

Employees:

How Much Will I Receive from My Employer For Paid Leave? It depends on your normal schedule and why you are taking leave.

Paid Sick Leave for Self is paid at your regular rate of pay up to a maximum of $511 per day for 10 days.

Paid Sick Leave for Others is paid at 2/3 of your regular rate of pay up to a maximum of $200 per day for 10 days.

Paid Family and Medical Leave is paid at 2/3 of your regular rate of pay at a maximum of $200 per day for an additional ten weeks.

Can I Take Paid Leave Intermittently While Teleworking? Yes. If the employer allows it and you are unable to telework your normal schedule of hours due to a qualifying reason, you and your employer may agree that you can take paid leave intermittently while teleworking.

Can I Take Paid Leave Intermittently While Working at My Usual Worksite? It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons for yourself must be taken in full day increments. Alternatively, you may take paid sick leave or paid family and medical leave intermittently if your employer agrees, if paid for qualifying reasons due to care for your child whose school is closed or the childcare provider is unavailable. 

If My Employer Closed My Worksite, Reduces My Hours or Furloughs Me Can I Still Get Paid Leave? No. If your employer sent you home and stopped paying you because it didn’t have work for you to do, you will not get paid leave benefits. This is regardless if it was before or after the April 1, 2020 effective date. You may however be eligible for unemployment benefits.

May I Collect Unemployment Benefits for Time in Which I Receive Paid Leave? No. If your employer provides you paid sick or expanded family and medical leave, you are not eligible for unemployment insurance at the same time.

If I am Paid Sick or Family and Medical Leave, Must My Employer Continue My Health Coverage? Yes, if your employer provides group health coverage, you are entitled to the health insurance during the paid sick or family medical leave. If you do not return to work at the end of the paid leave, you would not longer be eligible for the employer health insurance but should be able to continue coverage under COBRA.

The complete list of 37 questions and answers released on this topic can be found on the Department of Labor website at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Contact us for assistance on how to apply this to your business.