Labor & Employment E-lert: COVID-19’s Impact on Employers: The FFCRA is NOW in Effect and Answers to Frequently Asked Questions Regarding the FFCRA (Update #4)

This is not an April Fool’s joke! Today is the effective date for the paid sick leave provisions of the FFCRA. For employers who need to be brought up to speed on the new paid leave requirements, we have been publishing answers to frequently asked questions and providing additional resources regarding COVID-19 and the FFCRA. You may access those previous posts in the following links:

Also, hot off the press, the DOL has now issued its temporary rule with the regulations. Stay tuned for a further update regarding these regulations.

Finally, for employers with a unionized workforce, the NLRB recently provided guidance regarding the rights and obligations of employers and labor organizations during a public emergency.

We will continue to compile and publish these answers and resources to assist you with the implementation of these laws. These issues are multi-faceted, fact-specific, and complex, please feel free to reach out to us to discuss them further.

  1. Can I require employees to come to work if they do not have a qualifying need for leave?

    In most instances, yes. An employee may not refuse to come to work due to a generalized fear of the virus. However, employers covered by OSHA must be cognizant of the “general duty” clause, which provides that each employer “shall furnish … a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”  Therefore, employers should continue to follow the OSHA, CDC, and other state or local guidance regarding health and safety in the workplace.

    Please remember other laws continue to apply.  Complaints about health and safety may be protected under the National Labor Relations Act.  Industry-specific OSHA regulations may require certain equipment. The confidentiality requirement under the ADA may limit what specific, identifying information can be shared with coworkers regarding other employees.
  2. If I furlough or layoff my employees due to the impact of COVID-19 on my business, do I have to provide paid sick leave under the FMLA or PSL?

    No. Employees who are laid off or furloughed are not working because the employer does not have sufficient work, not because the employee is experiencing one of the qualifying reasons under the expanded FMLA or PSL. The DOL has clarified it does not matter whether the closure was due to a lack of business or a government directive to close the business. Additionally, the obligation to provide paid leave ceases upon closure, even if the closure is temporary, after April 1, 2020, or while employees are using paid sick leave. If an employer reduces an employee’s scheduled hours, the employee is not entitled to make up the difference in paid FMLA or PSL.
  3. Does the 30-day eligibility period for expanded FMLA apply to a rehire who was recently laid off and then rehired?

    On March 27, 2020, Congress amended the FFCRA in the CARES Act to address this specific question. Under the new amendment to the FFCRA, if an employee was laid off on March 1, 2020, or later and, at the time of the layoff, the employee had worked for the employer for at least 30 of the 60 calendar days prior to the layoff, the employee is eligible for paid FMLA upon rehire. There is no additional qualification period.
  4. What documentation can an employer request when an employee seeks PSL or paid FMLA?

    The DOL guidance provides that employees must provide the same type of documents required by the IRS tax credit forms (not yet released). It also provides that all existing certification requirements under the FMLA continue to apply.

    The IRS has provided additional guidance, released yesterday, regarding the documentation that an employee should provide to an employer. Specifically, the IRS advises that the employee should provide a written request for such leave, including the employee’s name, dates for which leave is requested, statement of the COVID-19 qualifying reason/need, and a statement that the employee is unable to work, including telework, for such reason/need.

    For a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine. If the person subject to the quarantine or advice to self-quarantine is not the employee, the employee should provide the person’s name and relation to the employee for whom the employee is providing care.

    For a leave request based on a school closing or child care provider unavailability, the request from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave. Additionally, the IRS guidance provides that, for employees seeking leave to care for a child older than 14 during the daytime, the employee should provide a statement that special circumstances exist requiring the employee to provide care.

    This documentation must be retained for 4 years.
  5. Does paid FMLA impact an employee’s entitlement to other unpaid FMLA leave?

    Yes. Expanded FMLA does not create a separate 12-week leave entitlement. An employee is entitled only to a total of 12 workweeks of leave for all reasons. For instance, if an employee already utilized 7 weeks of their 12 weeks’ worth of rolling FMLA entitlement due to a different serious health condition, then the employee may only take a total of 5 weeks of FMLA under the FFCRA. Additionally, an employee who uses 12 weeks of paid FMLA leave who then requests leave for surgery in August will not have any unpaid FMLA leave remaining.
  6. Is an employee entitled to reinstatement at the conclusion of paid leave?  Can an employer reinstate the employee to a different position or deny reinstatement?

    In most instances, the reinstatement requirements of the FMLA apply in the same manner to paid FMLA as they do to unpaid FMLA. Thus, at the conclusion of the paid FMLA leave, the employee is entitled to reinstatement to the same or substantially similar position. However, the key employee provision of the FMLA likewise applies to paid FMLA and may not require reinstatement if the employer complies with the key employee requirements. Additionally, as the FMLA provides, an employee is not entitled to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”   Thus, if the employee would have been furloughed or laid off if he or she had not been on leave, then he or she does not have to be restored to the position.  Instead, the employee has the same status as if he or she had not taken leave.

    The FFCRA also created another limited exemption from reinstatement for small employers with fewer than 25 employees. These employers must comply with the following conditions:
  • The employee must take paid FMLA under the FFCRA;
  • The employee’s position must no longer exists due to economic or operating conditions that affect employment and are caused by the COVID-19 public health emergency;
  • The employer makes reasonable efforts to restore the employee to an equivalent position; and
  • If these efforts fail, the employer makes reasonable efforts over a one-year period as defined by the FFCRA to contact the employee if an equivalent position becomes available.