We recently posted about the U.S. Families First Coronavirus Response Act (FFCRA), including its most important components, the Emergency Paid Sick Leave Act and the Emergency Medical Leave Expansion Act. As with most of the major new enactments intended to address COVID-19 issues, there was so little lead time that widespread confusion followed. The U.S. government has provided updates and guidelines to try to clarify the application of the FFCRA.
Most recently, the Department of Labor (DOL) has provided a “FAQ” response with more specific guidance to employers about how to comply with the FFCRA. These are some of the most important takeaways for employers:
- The DOL cleared up ambiguity surrounding whether state and local “stay at home” orders are considered a “quarantine or isolation order” for purposes of qualifying for EPSL under the FFCRA. The DOL guidance provides that a quarantine or isolation order includes a broad range of governmental orders including orders that “advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” However, the government order must be the “but for” cause of the inability to work. An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee, such as due to a downturn in business related to COVID-19, because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.
- Employees are not entitled to take EPSL or Emergency Family and Medical Leave (EFML) if their employer’s business has been forced to shut down in response to a federal, state or local government directive.
- If an employee takes EFML, an employer may require that the employee concurrently use any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation, personal leave, or paid time off. No such provision exists with respect to EPSL.
- The DOL also provided additional guidance on the specific factors a small employer, with fewer than 50 employees, must show to receive an exemption from the requirement to provide leave under the FFCRA, when doing so would “jeopardize the viability of the business as a going concern.”
- Employers whose employees are teleworking should bear in mind that they are still required to comply with labor laws. Employees who are teleworking for COVID-19 related reasons must always record, and be compensated for, all hours worked, including overtime.
- An employee’s “regular rate of pay” as that phrase is defined under the Fair Labor Standards Act is used to determine the amount an employer must pay an eligible employee who takes EPSL or EFML (after the initial two-week unpaid period). Employers need to ensure they are accurately calculating employees’ regular rate of pay when compensating employees for paid leave.
The DOL’s FAQs, available here, provide needed guidance to help employers interpret and comply with the FFCRA. Conkle, Kremer & Engel attorneys continue to monitor and advise clients about the legal events affecting businesses trying to manage the impact of the COVID-19 pandemic.