Paid Leave and Coronavirus—Part X: Families First Act Updated FAQs and OMB Reviewing Final Regulation

Sign up for our Coronavirus roundup email.
Visit our Coronavirus resource page.

Seyfarth Synopsis: The Families First Coronavirus Response Act (“FFCRA” or the “Act”) goes into effect tomorrow April 1, 2020. As covered employers prepare for the Act’s paid sick time (“PST”) and paid family medical leave (“PFML”) mandates to begin, we understand that the Department of Labor (“DOL”) will issue final regulations, as early as tomorrow, further describing the obligations of employers, and the rights of employees, under the Act. We presume that this will be issued as an “interim final” regulation effective immediately, invoking the “good cause” exception to the normally required notice and comment rulemaking procedures, and to the 30 day delay in effective date, under the Administrative Procedure Act. Normally, an “interim final” rule also serves as a vehicle for a request for comments. The draft final regulation was submitted to Office of Management and Budget (“OMB”) for review on March 30, RIN: 1235-AA35.

In addition to drafting and sending its final regulations to the OMB, the DOL has published updated FAQs on the Act.[1] The current DOL FFCRA FAQs cover a broad scope of topics, including, but not limited to, treatment of joint and integrated employers, small employer exceptions, whether paid leave is available to employees during worksite closures and “furloughs,” the interplay between standard FMLA leave and PFML, intermittent leave, coordination of employer-provided paid time off and paid leave under the FFCRA, and the meaning of “health care provider” and “emergency responder.” Here are some highlights of the DOL’s latest FFCRA FAQs.

Threshold Qualifications

As we have previously discussed, the FFCRA generally applies to private employers with fewer than 500 employees, as well as certain public sector employers. The updated FAQs clarify that, for purposes of both PST and PFML, employers should apply the FMLA’s integrated employer test to determine if multiple entities should be counted as one integrated employer or separate employers. Earlier versions of the FAQs were unclear on whether this integrated employer test applied in the PST context.

Small Employers

As we have previously reported, the FFCRA states that, for purposes of PST, the DOL through good cause rule making can exempt employers of less than 50 employees from at least the PST covered reason for use related to an employee’s absence to care for a son or daughter whose school or place of care has been closed due to COVID-19 if imposing the mandate would jeopardize the viability of the business as a going concern. The FFCRA contains a similar provision with respect to potential small business exemptions from the PFML mandate.

The DOL’s updated FAQs state that a small business can claim this exemption if an authorized officer of the business has determined that:

The provision of PST or PFML 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;
The absence of the employee or employees requesting PST or PFML 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
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 PST or PFML, and these labor or services are needed for the small business to operate at a minimal capacity.

As called for under the Act, we expect to receive further details on the small business exemption in forthcoming DOL final regulations.

Worksite Closures and Furloughs

The updated FAQs include several Q&A regarding the availability of PST and PFML during worksite closures and “furloughs.” The FAQs note that regardless of whether a worksite is closed before, on, or after April 1, 2020, the affected employees will not receive PST or PFML and instead may be eligible for unemployment insurance benefits. The FAQs expressly state that 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.” The FAQs explain that this is the case even where an employee requested PST or PFML under the Act prior to the closure. Further, the FAQs note that if an employer closes while an employee is receiving PST or PFML under the Act, the employer must pay the employee for any PST or PFML used before the employer closed, but that as of the date the employer closed the worksite, the employee is no longer entitled to paid leave under the Act.

Regarding furloughs, the FAQs explicitly state that “if your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave.” Instead, the FAQs explain that the employee may be entitled to unemployment insurance benefits.

Note that the FAQs’ language stating that PST and PFML are not available when an employer’s worksite closes pursuant to a Federal, State or local directive suggests that employees will be unable to use PST under the Act when they are not working due to a shelter in place, workforce reduction, non-essential business closure, or other government order related to COVID-19. Instead, the covered PST reason for use stating that PST is available to employees who “are subject to a Federal, State, or local quarantine or isolation order related to COVID-19” appears limited to situations where the order of quarantine or isolation related to COVID-19 applies directly to the individual employee himself or herself. We expect to receive further details on this point in forthcoming DOL regulations or FAQs.

Interplay Between Standard FMLA and FFCRA PFML

The FAQs clarify that an employee who uses PFML under the FFCRA for “public health emergency” leave would have that time counted against his or her standard FMLA allotment. By the same token, if an employee works for an employer who was covered by the FMLA prior to April 1, 2020, and the employee has taken some or all of the 12 workweeks of standard leave under the FMLA during the current 12-month period as determined by the employer, the employee’s entitlement to PFML under the Act would be reduced accordingly.

Intermittent Leave

The FAQs layout several scenarios and factors that impact whether PST and PFML can be taken intermittently. In particular the relevant factors include whether the employee is teleworking or working at their physical worksite, and the nature of the absence (i.e., the relevant reason for use). Here are some of the specifics:

Intermittent Leave and Telework: The FAQs state that an employee can use PST intermittently, if (a) the employer allows it (i.e., the employee and employer mutually agree) and (b) if the employee is unable to telework their normal schedule of hours due to one of the qualifying PST reasons. In that situation, the employer and employee can agree that the employee may take PST intermittently while teleworking. Similarly, if an employee is prevented from teleworking their normal schedule of hours because they need to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee and employer may agree that PFML can be taken intermittently while teleworking.
- Minimum Increments: Per the FAQs, an employee may take intermittent PST or PFML in any increment, provided that the employee and employer agree. For example, if the employee and employer agree on a 90-minute increment, the employee could telework from 1:00 p.m. to 2:30 p.m., take leave from 2:30 p.m. to 4:00 p.m., and then return to teleworking.
Intermittent Leave and Working at Physical Worksite:
- Non-School or Place of Care Closures: The FAQs state that, when working at their usual worksite, an employee who seeks to use PST for a covered reason other than to care for their son or daughter whose school or place of care has closed due to COVID-19 concerns must take the PST in full-day increments. The FAQs explain that once an employee starts taking PST for one or more of the non-school or place of care closure qualifying reasons, they must continue to take PST each day until they either (1) use the full amount of PST or (2) no longer have a qualifying reason for taking PST.
- School or Place of Care Closures: In contrast, if an employee and employer agree, the employee can take PST or PFML intermittently if they are taking the paid leave to care for their son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if the employee’s child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take PST or PFML on Mondays, Wednesdays, and Fridays to care for their child, but work at their normal worksite on Tuesdays and Thursdays.

Coordination of Employer-Provided Paid Time Off and Paid Leave Under the FFCRA

The FAQs contain several Q&A regarding the interplay between and coordination of employer-provided paid time off and paid leave under the FFCRA. There are several nuances at play that will depend on the nature of the employer’s paid time off policies and programs. The FAQs’ guidance boils down to supplementing FFCRA PST or PFML with employer-provided paid time off if mutually agreed to between the employer and employee.

Meaning of Health Care Provider and Emergency Responder

For purposes of a “health care provider” who may be excluded by their employer from PST or PFML, the FAQs define “health care provider” as follows:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

For purposes of an “emergency responder” who may be excluded by their employer from PST and/or PFML, the FAQs define “emergency responder” as follows:

An employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

We will be reviewing the final regulations noted above as they come out, so stay tuned for further analysis. In the meantime, given the FFCRA’s April 1 effective date, employers should consider taking the following steps:

Monitor developments DOL announcements for final regulations on the FFCRA.
Review existing workplace policies relating to a wide host of issues, including travel, work from home, and other policies as well as existing leave policies, and assess the potential effect of the FFCRA on those policies. If necessary, implement additional policies specifically tailored to FFCRA compliance.
Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with the FFCRA and paid leave requirements generally. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

[1] Click here for our prior client alert summarizing the DOL’s FFCRA FAQs.