Moses & Singer LLP

DOL Provides Answers to Help Employers Manage Federally Mandated Paid Sick and Family Leave

March 30, 2020

By: Kimberly Klein

Beginning Wednesday, April 1, 2020, employers with fewer than 500 employees must offer paid sick and family leave to their employees for Coronavirus-related reasons under the Families First Coronavirus Response Act (the “Act” or “FFCRA”).  The U.S. Department of Labor (DOL) continues to provide practical guidance to help employers navigate this new law. 

Paid Sick Leave and Payroll Tax Credit

Under the Act and the Emergency Paid Sick Leave Act (“PSL”), employers must provide 10 days’ paid leave to an employee who is prevented from working due to any of six qualifying reasons (the “Qualifying Reasons”):

  1. is subject to a coronavirus quarantine or isolation order;
  2. has been advised by a health care provider to self-quarantine due to coronavirus concerns;
  3. is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
  4. is caring for an individual described in (1) or (2) above (not just limited to family members);
  5. is caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus precautions; or
  6. is experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.

In addition, employees may take an additional 10 weeks of paid leave to care for a child as set forth above (scenario # 5) under the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”).  The employee is paid different amounts depending on the type of leave taken [click here for the article detailing the leave], and the employee is reimbursed through a payroll tax credit. Click here to see our article explaining the payroll tax credit.

Employees must provide documentation substantiating their need to take the leave, detailed below.


Questions and Answers

Q. Can employers lay off or furlough workers because the business has suffered without providing paid sick leave during a mandatory quarantine or isolation order?
A. Yes.  If an employer has to furlough or lay off workers because it does not have enough work, employees are not entitled to take paid leave.  The employer must have work for the employee and one of the Qualifying Reasons must prevent the employee from performing that work, including telework.  In such circumstances, the employee may be eligible for unemployment insurance benefits.

Q. Are employees entitled to paid leave for a Qualifying Reason if their employer closes or suspends operations?
A. No. 
If the business shuts down, whether temporarily or permanently, before or after April 1, 2020, the employee is not entitled to paid leave under the FFCRA, regardless of the reason for the closure including a mandatory quarantine or isolation order.

Q. Does my business qualify for the small business exemption?
A. Yes,
if you meet the following criteria…An employer with fewer than 50 employees is exempt from providing PSL and Expanded FMLA leave to employees for childcare reasons (scenario #5) when doing so would jeopardize the viability of the small business as a going concern. The exemption may be claimed if an authorized officer of the business has determined that:

  1. The paid sick or FMLA 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. Employees taking the paid sick or FMLA leave would result in 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. If employees took the paid sick or FMLA leave, there would be insufficient workers who could perform the jobs of those requesting the leave, “and these labor or services are needed for the small business to operate at a minimal capacity.”

Q. If an employer reduces an employee’s hours, can the employee use paid leave to supplement the reduced hours?
A. No. 
If an employer reduces an employee’s hours because there is not enough work, paid leave cannot be used because the employee is “not prevented from working those hours due to a COVID-19 [Q]ualifying [R]eason, even if your reduction in hours was somehow related to COVID-19,” such as a mandatory quarantine or isolation order that resulted in less work.

Q. Are employees required to provide documentation to receive the paid leave?
A. Yes. 
When taking PSL or Expanded FMLA leave, employees must provide employers with documentation setting forth the employee’s name, the Qualifying Reason, a statement that the employee is unable to work or telework because of the Qualifying Reason, and the dates of the leave.  In addition, employees must provide documentation of the reason for the leave, such as the source of the quarantine or isolation order, name of the healthcare provider who advised the employee to self-quarantine, or notice posted by your child’s school etc. of the closure. 

Q. Are employers required to document the leave to receive the payroll tax credit?
A. Yes.
  Employers must supply the documentation provided by the employees. [click here for IRS Requirements]

Q. Do employees get up to 80 hours of PSL for each Qualifying Reason?
A.  No. 
Employees may take up to two weeks (prorated for part-time employees) total for any combination of Qualifying Reasons.

Q. Do employees get more than 12 weeks total if they need paid leave to care for a child whose school is closed or childcare provider is unavailable?
A. No. 
Employees who qualify for paid leave under PSL and Expanded FMLA for childcare reasons (scenario #5), may only take a total of 12 weeks of paid leave.  The PSL (or other accrued time) would cover the first two weeks of unpaid Expanded FMLA leave.  Likewise, if an employee needs to take FMLA leave for a Qualifying Reason and a reason unrelated to COVID-19, the total FMLA leave is 12 weeks.

Q. Do Employers have to pay employees if they took leave for a Qualifying Reason prior to April 1, 2020?
A. No. 
The Act is not retroactive.  If the employee took leave for a Qualifying Reason prior to April 1, paid leave under the FFCRA does not apply; however, if the employee took leave for a Qualifying Reason prior to April 1 and still needed leave for a Qualifying Reason after April 1, the employer has to provide the required paid leave for the leave taken after April 1.  Employers may have had obligations to provide paid leave in connection with a COVID-19 related reason prior to April 1 under other leave laws, such as New York State paid sick leave, which went into effect on March 18, 2020. 

Q. Can paid leave be taken intermittently?
A.
It depends on the reason and if your employer permits it.  If the employer agrees, an employee working remotely can take paid leave intermittently for a Qualifying Reason where the employee is still able to work.  Intermittent leave can be taken in any increment in such circumstances.  However, if the employee is working from the office, the only potential Qualifying Reason for intermittent leave is childcare (scenario #5) and the leave must be taken in full day increments. This is to prevent further possible spread of the virus if the employee needs the leave for their own COVID-19 medical reason or to care for an individual. 

Q. Do employees continue to receive healthcare coverage while on paid leave?
A. Yes
, provided they continue to pay the employee portion of the premium.

For questions about Federally Mandated Paid Sick and Family Leave, please contact me at (212) 554-7853 or kklein@mosessinger.com.

 

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