by Terry L. Mann and Ashlyn B. Lindskog

The Families First Coronavirus Response Act (FFCRA) goes into effect on April 1, 2020, bringing with it an emergency expansion of the Family and Medical Leave Act and federal paid sick leave requirements, among other things. Martin Pringle’s employment attorneys have collected the most frequently asked questions from clients in Kansas and Missouri, reviewed the currently available Department of Labor guidance [as of March 31, 2020], and offer the following guidance:

For a general discussion of the FFCRA, you can access our firm’s COVID-19 resources at https://www.martinpringle.com/covid-19 .

FEDERAL EMERGENCY FMLA (EFMLA)

Who is a “covered employer” subject to the expanded FMLA?

• All private employers with “fewer than 500 employees” are subject to the law. This currently includes employers with fewer than 50 employees, which were previously not considered a “covered employer” under the FMLA.

Does the FFCRA apply to nonprofit organizations and their employees?

• Yes. A “covered employer” includes a private entity or individual that employs fewer than 500 employees, as well as any public agency or other entity that employs one or more employees.

My company has fewer than 50 employees total.  Am I automatically exempt from providing paid leave?

• No. The FFCRA gives the Department of Labor the authority to exempt small businesses if the imposition of the requirements under the EPSLA or the EFMLA would jeopardize the viability of the business as a going concern. However, the FFCRA itself does not automatically exempt small businesses. 

How can an employer with fewer than 50 employees request or claim exemption from the paid leave requirements of FFCRA (both EPSLA and EFMLA)?

• The Department of Labor indicates that employers with fewer than 50 employees should document certain reasons they believe compliance with FFCRA emergency paid leave provisions would jeopardize the viability of the small business as a going concern.
• A small business may claim this exemption if an authorized officer of the business has determined that one of the following conditions is satisfied:
  • 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;  
  • 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  
  • 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.
• Employers are asked not to send materials to the Department of Labor regarding the exemption.

Who is eligible to take emergency FMLA leave?

• An employee is eligible to take EFMLA leave if he or she has been “employed” for at least 30 calendar days.

What type of emergency FMLA leave is provided?

• The FFCRA grants EFMLA to care for a minor child (under age 18) when the need is related to a public health emergency (PHE). The following must be satisfied in order for the employee to qualify for E-FMLA leave:
  • The leave must be taken between April 1, 2020, and December 31, 2020. (Leave provided prior to April 1, 2020, will not count as FMLA leave.)
  • The employee must be unable to work or telework because of a need to take care for a minor child due to the school or place of care for the child being closed, due to coronavirus.

Is emergency paid leave paid or unpaid?

• Both. The first ten days of leave are unpaid. The FFCRA also includes a paid sick leave provision that would theoretically cover these first two weeks unless they have been exhausted for other reasons.

May an employer require an employee to use other employer provided sick leave prior to using emergency FMLA?

• An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave, but may not be force to utilize such leave.

May employee leave be taken intermittently?

• Ordinary FMLA may be utilized in increments as small as one hour. DOL guidance indicates that intermittent leave can be combined with telework if an employer permits telework or while teleworking if an employee is not available to telework during normal hours due to unavailable child care, for example. EFMLA leave while working at an employee’s usual worksite can be taken intermittently if the employer permits and the employer and employee agree on a schedule.
• Paid sick leave for qualifying reasons related to COVID-19 while an employee is working at his or her usual worksite must be taken in full-day increments because of the reason for the emergency sick leave is to keep an employee from possibly spreading the coronavirus to others at work.

Are spouses who work together for the same employer required to share emergency leave?

• The FFCRA does not address this issue. For ordinary FMLA, the regulations provided by the Department of Labor specify that spouses’ leave is aggregated for certain types of FMLA leave. The FFCRA does not state any such rule.   Presumably, therefore, spouses who work for the same employer can both take a full twelve weeks of emergency FMLA leave.

Do I need to give notice to my employees?

• Yes.  Beginning April 1, 2020, covered employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.
• The notice is available at the following link: https://www.dol.gov/agencies/whd/posters.

What if my employees are furloughed or laid off due to economic conditions?

• According to the DOL guidance, if an employer discharges employees due to economic conditions, the employee will not be eligible for emergency FMLA or paid sick leave under the FFCRA.

What if an employee is currently on FMLA?

• If an individual is currently on ordinary FMLA leave, which is unpaid, under the emergency FMLA, they would be able to transition to these provisions and would be able to receive compensation as outlined in the expansion legislation. However, the maximum leave available under FMLA remains at 12 weeks per 12-month period.

Do the state-mandated “stay at home,” “shelter in place” or other similarly titled state orders qualify as quarantine or self-isolation orders for FFCRA?

• It seems unlikely. Many states, counties and municipalities have issued “stay-at-home” or “shelter-in-place” orders in an attempt to blunt the spread of the coronavirus. The latest DOL guidance suggests that FFCRA’s emergency leave provisions do not apply where a business is closed due to a stay-at-home or shelter-in-place order. The leave provisions then would apply only where the employer has work available for the employee that the employee is unable to perform for medical reasons or because of the unavailability of school or childcare. Unemployment benefits may be available to employees in such a situation. Or the business may be eligible for certain small business loan and grant options created under the CARES Act.

What notification can I require from an employee seeking to take leave under the EFMLA?

• The employee is required to give the employer with such notice of leave as is practicable. 

Emergency Paid Sick Leave

Which employers are covered?

• All private employers with “fewer than 500 employees” are subject to the law. 

What employees are covered?

• All employees, regardless of the length of time they’ve been employed.

When must paid sick leave be provided?

• The act provides emergency paid sick leave for eligible employees for any of the following reasons:
• 1.         Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (As noted above, according to the DOL, this does not include a state or local shelter-in-place or stay-at-home order).
• 2.         Self-Quarantine—when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• 3.         COVID-19 Symptoms—when the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
• 4.         Care for Others—when the employee is caring for an “individual” who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19;
• 5.         School/Childcare Closure—when the employee is caring for a minor son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions (this is the only one that appears to overlap with EFMLA);
• 6.         Similar Conditions—when the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Can I require an employee to use other paid leave before they use emergency paid sick leave under the FFCRA?

• No. An employer may not require employees to use other paid leave first.  The leave is available for immediate use.

How do I pay eligible employees?

• Employers generally must compensate employees for any paid sick time they take at the higher of their regular rate, the federal minimum wage, or the local minimum wage. However, there are two limitations. First, payments for EPSL are capped at $511 per day ($5,110 in the aggregate). Next, employees absent for reasons designated as “Care for Others,” “School/Childcare Closure,” and “Similar Conditions” described above must be compensated at two-thirds of their regular rate, capped at $200 per day ($2,000 in the aggregate).

Does this apply to part time employees?

• Yes. A part-time employee is entitled to leave for his or her average number of work hours in a two-week period.

Do I have to include overtime hours in calculating leave pay?

• Yes. The Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Can an employee take paid leave under both the EPSLA and the EFMLA?

• Yes.  One of the reasons for paid sick leave is the need to care for a minor child due to closure of school or childcare facility.  In that situation, the employee could take 80 hours of paid sick leave for child care, and then take ten more weeks’ leave under the EFMLA to care for their minor child.  In addition, if the employee is taking leave under EPSLA for a qualifying reason that does not fall under EFMLA and subsequently needs additional leave for a qualifying reason under the EFMLA that does not fall under the EPSLA, it is likely that an employee will be entitled to leave under both provisions of the FFCRA and the leave will not run concurrently. Regardless, keep in mind that an employee is only entitled to up to a total of twelve weeks of paid leave under the FFCRA.

Does EPSLA run concurrently with EFMLA?

• Maybe. If the employee is eligible for leave under the EFMLA and the reason for EPSLA also qualifies for leave under the EFMLEA, it is likely that the two would run concurrently. However, if an employee has exhausted his or her EFMLEA or does not yet qualify, then the employee would only be eligible to take EPSLA and the leaves would not run concurrently. 

Are any employers exempt from the Emergency Paid Sick Leave Act?

• Employers that employ health care providers or emergency responders may elect to exclude such employees from the Emergency Paid Sick Leave Act.  The Secretary of Labor shall also have the authority to issue regulations for good cause to exclude health care providers and emergency responders from this Act.

Do I need to provide notice to employees of their rights to take paid sick leave under FFCRA?

• Yes.  Beginning April 1, 2020, covered employers must post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, approved by the Secretary of Labor, describing the requirements of this Act. Employers also may satisfy this requirement by emailing or mailing the notice to current employees. If an individual employee is not currently working, but is receiving benefits, the individual likely will be considered a current employee.
• The notice is available at the following link: https://www.dol.gov/agencies/whd/posters.

More questions about how to respond to COVID-19 in your workplace? Check out Martin Pringle's complete COVID-19 resources or contact one of our employment attorneys.

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