DOL’s New Guidance Answers Many Employer Questions about FFCRA

A MUST READ FOR ALL EMPLOYERS WITH FEWER THAN
500 EMPLOYEES:

DOL’S NEW GUIDANCE ANSWERS MANY EMPLOYER QUESTIONS ABOUT FAMILIES FIRST CORONAVIRUS
RESPONSE ACT
(effective April 1, 2020)

As we reported on an earlier e-alert on March 25, 2020 ( CLICK HERE ), the Department of Labor has issued helpful FAQs on the Families First Coronavirus Response Act (“FFCRA”). Those FAQs have now been updated and answer many of the questions employers have been asking . The full version of the FAQs can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions .

In short, the FAQs clarify the following:

• If a worksite is closed, or employees are on furlough, employees are not eligible for FFCRA benefits;
• Employers must keep specified documentation to qualify for tax credits under the FFCRA;
• Intermittent leave can be taken if the employer agrees to allow such leave;
• You can allow your employees to use both FFCRA benefits and pre-existing benefits the workplace provides, but cannot require them to do so;
• The FAQs have additional answers on: maintaining health insurance coverage; interplay with unemployment benefits; interplay with multi-employer collective bargaining units, and other topics.

While we strongly urge all covered employers to read all of the FAQs , here is a quick guide on what topics are covered:

• How does a company review the requests for leave and get the tax credits under the FFCRA?
  • See Questions #15 and #16, which address the procedure, documentation, and recordkeeping for taking COVID Paid Sick Leave and COVID FMLA. These questions also explain the procedure for seeking tax credits. In order to receive the tax credits, employers must retain this documentation.
• What does it mean to “telework”?
  • See Questions #17 and #18, which address what it means to “telework.” Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
• Can COVID Paid Sick Leave and COVID FMLA be taken intermittently?
  • See Questions #20 and #21, which address whether COVID Paid Sick Leave can be taken intermittently. The answer is yes, if the employer allows it and the employee is unable to telework his/her normal schedule of hours due to a qualifying reason. Intermittent increments are determined by agreement between employee and employer, except the time off must be taken in full day increments if the employee is not teleworking. These questions also address how/when COVID Paid Sick Leave expires.
  • See Question #22, which addresses whether COVID FMLA can be taken intermittently. The answer to this is yes, but only with the employer’s permission.
• Can employees get COVID Paid Sick Leave or COVID FMLA when the worksite has closed or the employee is furloughed?
  • See Questions #23 – #27, which address whether employees can get COVID Paid Sick Leave or COVID FMLA where the worksite has closed or the employee is furloughed.
    • Closure: If an employer’s worksite closes before, on or after April 1, 2020, employees will not be entitled to COVID Paid Sick Leave or COVID FMLA because the employer does not have work for the employee. This is true whether the employer closes for lack of business or because it is required to close due to a federal, state or local directive. It is also true whether the employer tells the employee that it will reopen at some point in the future. Employees in this situation should apply for unemployment benefits. This also means that if an employee is already out on COVID Paid Sick Leave or COVID FMLA, the employer must pay for any paid sick leave or COVID FMLA for which an employee was eligible before the employer closed, but as of the date of the worksite closure, employees are no longer eligible for benefits.
    • Furloughs: If an employee is furloughed on or after April 1, 2020, because the employer does not have enough work or business for the employee, the employee is not entitled to take COVID Paid Sick Leave or COVID FMLA. Employees in this situation should also apply for unemployment benefits.
• Is FFCRA available to an employee whose hours are reduced?
  • See Question 28, which addresses whether COVID Paid Sick Leave or COVID FMLA is available to a qualifying employee if the employer reduces his/her schedule. The answer is no, if the employer reduces the schedule because it does not have work for the employee to perform. The employee may take COVID Paid Sick Leave or COVID FMLA if a COVID-19 qualifying reason prevents the employee from working his/her full schedule. In this case, the amount of leave is computed based on the employees’ work schedule before it was reduced.
• Can an employee get both unemployment and FFCRA benefits?
  • See Question 29, which addresses whether employees can collect unemployment benefits while receiving pay under COVID Paid Sick Leave or COVID FMLA. The answer is generally no, but employees should contact state unemployment agencies for definitive answers because reduction in work hours may qualify and allow employees to get benefits.
• Must an employer maintain health insurance coverage while employees are receiving FFCRA benefits?
  • See Question 30, which addresses whether an employer must maintain health coverage while on COVID Paid Sick Leave and COVID FMLA. The answer is yes, and the employee must continue to make any normal contributions. If employee cannot return to work after the leaves expire, employees must check with employer as to whether they are eligible to keep health coverage on same terms. If they are not eligible, COBRA or applicable “mini-COBRAs” can be elected at that time.
• What is the interrelationship between the FFCRA benefits and pre-existing leave benefits that an employer might offer?
  • See Questions #31-34, which addresses how an employer’s preexisting leave entitlements interact with COVID Paid Sick Leave and COVID FMLA. An employee cannot take both FFCRA and pre-existing leave entitlements unless the employer permits the employee to supplement COVID Paid Sick Leave or COVID FMLA with any pre-existing leave. Further, an employer may not REQUIRE that employees use pre-existing leave in addition to the FFCRA benefits. Employers can pay employees in excess of the FFCRA entitlement amounts, but will not be able to receive tax credits for such amounts.
• What is the interplay between FFCRA benefits and multi-employer collective bargaining agreements?
  • See Questions #35 – #37, which addresses the interplay between FFCRA benefits and collective bargaining agreements. You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act and the Paid Sick Leave Act by making contributions to a multi-employer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave or paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multi-employer collective bargaining agreement.

If you have any questions relating to this notification poster, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney you typically work with or reach out to us directly.