DOL Provides Guidance on Employee Leave under the FFCRA

On April 1, the Department of Labor (DOL) issued temporary regulations implementing the Families First Coronavirus Response Act (FFCRA), which provides paid sick leave to eligible individuals impacted by the novel coronavirus, COVID-19. The regulations expand on and clarify a number of FFCRA provisions as well as the DOL’s own previously published Q&A informal guidance. The following information provides an overview of the issues we believe are most significant to the employment operations of our nonprofit and church clients.

Qualifying Reasons for Leave

As we noted in our previous guidance, the FFCRA entitles employees at a business employing fewer than 500 people, including nonprofits and churches, to take a limited amount of paid leave because they are unable to work or telework because they are:

  1. Subject to a quarantine or isolation order by the federal, state, or local government;
  2. Advised to self-quarantine by a healthcare provider;
  3. Seeking a COVID-19 medical diagnosis;
  4. Caring for an individual who falls under number 1 or number 2 in this list; or
  5. Caring for a son or daughter whose school or childcare provider has closed or is otherwise unavailable due to COVID-19.

The regulations provide additional details regarding these qualifying reasons, each of which is detailed below.

  • Subject to quarantine or isolation order: Employees may only take leave for this reason if: (1) the employer has work for the employee to perform; and (2) the order prevents the employee from performing the work, including telework.
  • Advised to self-quarantine by healthcare provider: The healthcare provider must believe the employee has, may have, or is “particularly vulnerable to” COVID-19.
  • Seeking a COVID-19 diagnosis: The employee must be experiencing COVID-19 symptoms and seeking a medical diagnosis. This is a qualified reason for leave only for the duration of time it takes the employee to obtain a diagnosis. It does not apply to leave taken to self-quarantine without seeking a diagnosis.
  • Caring for an individual: The employee must have a personal relationship with the individual, who must be the employee’s immediate family member, a person who regularly resides in the employee’s home, or someone whose relationship with the employee creates an expectation that the employee would care for the person if he or she were quarantined.
  • Caring for a son or daughter: Leave is only available for this reason if there is no other suitable individual, including a co-parent and other usual childcare provider, available to care for the child during that period. “Son or daughter” may be a biological, adopted, or foster child, a stepchild, or a legal ward who is under 18 or over 18 with a mental or physical disability making them unable to care for themselves. “Childcare provider” includes family members and friends who regularly care for the child and who may or may not receive compensation.

Exemption for Employers with Fewer Than 50 Employees

The FFCRA provided an exemption to the leave requirements for businesses, including nonprofits and religious organizations, with fewer than 50 people that can demonstrate providing the employee’s requested leave would jeopardize the viability of the business. The regulations clarify that such exemption is only available for leave related to childcare. It does not apply to any of the other qualifying reasons for leave. To be eligible for the exemption, an officer of the business or nonprofit must determine that:

  1. The requested leave would result in the expenses and obligations exceeding the available revenues and thereby cause the business to cease operating at a minimal capacity;
  2. The absence of the employees on leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge, or responsibilities; or
  3. There are not sufficient able, willing, and qualified workers available to perform the services provided by the employees on leave and such labor is needed to operate the business at a minimal capacity.

The officer must document this determination and retain it with the employer’s files.

Employer Notice

The regulations require employers to post a notice regarding the types of leave available under the FFCRA and the procedures available to filing complaints alleging FFCRA violations. The notice must be posted in a conspicuous place, electronically, or by mail or email. Employers may use the notice poster prepared by the DOL or prepare their own version as long as it contains the information on the DOL’s poster.

Employee Notice and Documentation of Need for Leave

The regulations entitle employers to require employees requesting leave to follow reasonable notice procedures as soon as practical. Such notice may be as soon as the day the leave begins. Employees requesting leave must provide a signed statement that includes: (1) their name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) a statement that the employee cannot work or telework due to the specified qualifying reason. The following additional details must be provided, depending on the qualifying reason for leave specified:

  • Subject to quarantine or isolation order: The name of the government entity that issued the order.
  • Advised to self-quarantine by healthcare provider: The name of the healthcare provider.
  • Caring for an individual: The name of the government entity that issued the order or the name of the healthcare provider that advised the individual to quarantine or self-isolate.
  • Caring for a son or daughter: The name of the child or children; the name of the school or childcare provider; and a statement that no other suitable person is available to provide childcare during the requested leave period.

The regulations further note that if an employee does not provide this required notice, the employer should notify the employee of the deficiency and provide another opportunity for the employee to comply before denying the request.

For additional information related to your organization’s responsibilities as an employer during the COVID-19 pandemic, please contact us.

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