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New Round of Guidance on the Families First Coronavirus Response Act

New Round of Guidance on the Families First Coronavirus Response Act

As explained in our prior blogs (see Families First Coronavirus Response Act – What We Know and Additional Guidance on the Families First Coronavirus Response Act), Congress has created two new forms of paid leave benefits that will go into effect on April 1, 2020 for employees who need time off for qualifying reasons due to COVID-19.  Over the weekend, the United States Department of Labor (“DOL”) released its third round of guidance on the new law, which includes an updated set of Questions and Answers concerning the Families First Coronavirus Response Act (“FFCRA”) in addition to a set of Frequently Asked Questions concerning the poster requirements mandated by the FFCRA.

I highly recommend employers review this additional guidance in detail.  Below, I have restated and summarized a few of the questions and answers from these updates that are noteworthy based on the questions we have been receiving about the FFCRA from our clients.  

If the employer closes the worksite before April 1, 2020 (the effective date of the FFCRA), can the employee still get paid sick leave or expanded family and medical leave?

No.  If prior to the FFCRA’s effective date, the employer sends the employee home and stops paying the employee because it does not have work for him/her to do, the employee will not get paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits.  This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but before the employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave?

No.  If the employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits.  This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

If the employer closes the worksite while the employee is on paid sick leave or expanded family and medical leave, what happens?

If the employer closes while the employee is on paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave the employee used before the employer closed.  As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits.  This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

If the employer is open, but furloughs an employee on or after April 1, 2020 (the effective date of the FFCRA), can the employee receive paid sick leave or expanded family and medical leave?

No.  If the employer furloughs the employee because it does not have enough work or business for the employee, the employee is not entitled to then take paid sick leave or expanded family and medical leave.  However, the employee may be eligible for unemployment insurance benefits.

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells the employee that it will reopen at some time in the future, can the employee receive paid sick leave or expanded family and medical leave?

No, not while the worksite is closed.  If the employer closes the worksite, even for a short period of time, the employee is not entitled to take paid sick leave or expanded family and medical leave.  However, the employee may be eligible for unemployment insurance benefits. 

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

The small business (less than 50 employees) exemption can apply in only one circumstance: where the employee is unable to work because the employee is caring for a child of such employee if the school or place of care has been closed, or the child care provider of such is unavailable, due to COVID-19 precautions.

How can a small business (less than 50 employees) qualify for the exemption?

In order to qualify for the small business exemption, an authorized officer of the business must determine one of the following conditions applies:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Where does the employer post the mandated notice?  Since most of the employer’s workforce is teleworking, where does the employer electronically “post” this notice?

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises.  The employer may satisfy this requirement by emailing or direct mailing the notice to each employee or posting the notice on an employee information internal or external website.

Does the employer have to share this notice with recently laid-off individuals?

No, the FFCRA requirements explained on this notice apply only to current employees.

Does the employer have to give notice of the FFRA requirements to new hires?

Yes, if the employer hires a job applicant, the employer must convey the notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

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Notwithstanding the language of this guidance, employers need to be cautious when terminating employees during the effective period of the FFCRA (April 1, 2020 – December 31, 2020).  Garcia & Gurney, ALC will continue to monitor new developments related to the FFCRA.  Please contact us if you need assistance in understanding the FFCRA or have any related questions.

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