New York Labor and Employment Law Report

U.S. Department of Labor Issues Questions and Answers Regarding the Families First Coronavirus Response Act

U.S. Department of Labor Issues Questions and Answers Regarding the Families First Coronavirus Response Act

March 30, 2020

By: Adam P. Mastroleo

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was enacted.  The statute left many questions regarding its implementation and administration unanswered.  Over the past several days, the U.S. Department of Labor (the “DOL”) has been publishing questions and answers addressing some of these unanswered questions.  Here is a summary of some of the key information provided by the DOL.

  • The FFCRA goes into effect on April 1, 2020.  The text of the statute states that its provisions would become effective "not later than 15 days after the date of enactment."  We now know that the effective date is April 1.
  • The requirements of the FFCRA are not retroactive.  In other words, all paid leave given to employees prior to April 1, 2020, even if given for COVID-19 qualifying reasons, does not count toward the emergency paid leave required by the FFCRA.  The FFCRA imposes new leave requirements, which begin April 1, 2020, and employers will be required to start providing FFCRA leave on that date.
  • Each employee can take a total of eighty (80) hours of paid sick leave under the FFCRA.  This means that an employee cannot take eighty (80) hours of paid leave for self-quarantine, and then take additional leave for one of the other COVID-19 qualifying reasons.  Sick leave under the statute is capped at eighty (80) hours for all COVID-19 qualifying reasons.
  • If an employee notifies his/her employer that he/she needs to take leave under the FFCRA, the employer should obtain documentation regarding the leave.  This documentation should include the employee’s name, the qualifying reason for requesting leave, a statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested.  Employers should work with their attorneys to develop forms that satisfy the statute’s requirements.  This documentation will be needed to receive the FFCRA tax credit.
  • There are several questions and answers addressing whether leave is available under the FFCRA if an employer shuts down, or an employee is terminated or temporarily furloughed.  The DOL’s consistent answer to these questions is that once an employee is terminated, for whatever reason, he/she is no longer entitled to leave under the FFCRA.  Employees are directed to apply for unemployment benefits in those instances.
  • An employee may take emergency paid sick leave or expanded family and medical leave on an intermittent basis if the employer allows it and if the employee is unable to telework his/her normal schedule of hours or report to work in person due to one of the COVID-19 qualifying reasons.
  • If an employer pays benefits greater than those required by the FFCRA, it may only receive a tax credit for the amount permitted under the statute.
  • Employees are only entitled to twelve (12) weeks of Family and Medical Leave Act (“FMLA”) leave in a twelve month period.  The FFCRA does not add additional FMLA leave.  Rather, it adds an additional basis for obtaining FMLA leave.  For example, if an employee was eligible for preexisting FMLA leave, and had already taken two weeks of leave in January 2020, that employee would only be entitled to receive ten (10) additional weeks of FMLA leave (for any qualifying reason) until January 2021.
  • Emergency paid sick leave is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement, or an employer’s existing company policy.
  • An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.  A small business may claim this exemption when a qualified officer of the business determines that:  (1) the provision of this leave would result in the business having to cease operations; (2) the absence of the employee(s) requesting leave would entail a substantial risk to the financial viability of the business due to the employee(s) specialized skills, knowledge of the business or responsibilities; or (3) there are not sufficient workers available to perform the work or services that are necessary for the small business to operate at a minimum capacity.

This list is not intended to be all inclusive.  We will continue to update this information as additional questions are answered by the DOL.