Insights

The DOL has published a series of questions and answers related to the FFCRA. The guidance was revised to reflect the clarifications provided in the final rules. Additionally, the DOL frequently revises the information and adds additional questions and answers as it deems necessary.

In the last two weeks, the DOL’s revisions to the Q&A include the following:

• Employees on paid FFCRA leave are entitled to be restored to the same or equivalent position upon return. However, employees are not protected from employment action, such as a layoff or furlough, which would have affected the employee if actively at work. There are certain exceptions for key employees and employers with fewer than 25 employees.
• The 12 weeks of expanded FMLA available to employees is reduced by the number of weeks of existing FMLA that an employee has previously used during the employer’s current 12-month determination period.
• An employee who is absent from work on emergency paid sick leave and not actively at work when their waiting period is satisfied will still have coverage effectuated. An employer cannot impose an actively-at-work provision against employees absent from work due to a health condition.
• Employers may exempt certain health care provider employees from taking advantage of the FFCRA paid leave. For this purpose, “health care provider” is defined as anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
• A small employer with fewer than 50 employees is exempt from providing paid leave related to a child’s school closure or unavailability of a day care provider due to COVID-19 if providing leave to a specific employee would jeopardize the viability of the small business.
• Paid leave is generally not available to those who are absent from work and receiving benefits under workers’ compensation or temporary disability.
• Employers must maintain certain records regardless of whether the leave was approved or denied. This includes the name of the employee requesting leave, the dates of requested leave, the reason for leave, and an employee statement indicating that they cannot work due to the stated reason. Depending on the reason, the employer may also ask for the name of the health care provider or governmental entity issuing the order for isolation/quarantine. If the reason for leave is to care for a child whose school is closed or day care provider is unavailable, the employer may also request the name of the school/day care provider and an employee statement indicating that no other suitable person is available to care for the child.
• The DOL will not bring enforcement actions against any employer for violations occurring within 30 days before April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply.

DOL FFCRA FAQs »