Category Archives: Families First Coronavirus Response Act

DOL Issues Updated FFCRA Regulations

Contributed by Peter Hansen, September 14, 2020

The U.S. Department of Labor announced revised regulations interpreting the Families First Coronavirus Response Act (FFCRA) in response to a New York federal court decision declaring some FFCRA regulations invalid.  The revised regulations become effective September 16, 2020, and include several changes and clarifications that employers should be aware of:

The Health Care Provider Exception.  The DOL limited the “health care provider” exception (which excluded certain employees from FFCRA eligibility) to employees who are “capable of providing health care services,” including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”  The DOL also provided a non-exhaustive list of employees who are not health care providers:  “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.”  Accordingly, employers in the health care industry must now undertake a position-specific analysis to determine which employees meet the new definition of “health care provider.”

Requiring Documentation Before FFCRA Leave. Employers cannot require the employee to submit documentation prior to the commencement of FFCRA leave.  Employers can, however, continue to require employees to provide documentation supporting their need for FFCRA “as soon as practicable.”

The DOL also doubled down on two of the four significant regulations the New York federal court invalidated:

Work Availability Requirement. FFCRA leave continues to be available only if the employer has work available for the employee to perform. So, if the employer has no work for the employee (due to a furlough, business closure, etc.), then the employee is not entitled to FFCRA leave even if they would otherwise qualify. 

Intermittent FFCRA Leave Only with Employer’s Consent.  Intermittent use of FFCRA leave continues to be available only if the employer allows it – however, the DOL clarified that the “employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis.” Put another way, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

The revised regulations include additional rationale for retaining the “work availability” and “employer consent for intermittent leave” requirements, but another lawsuit challenging them is certainly possible and perhaps even likely.  In the meantime, employers should consult with employment counsel on any request for FFCRA leave, especially before denying a request based upon the “health care provider” exception or lack of work available to the employee.

DOL Clarifies FFCRA Child Care Leave – More FFCRA Guidance Expected

Contributed by Suzanne Newcomb, September 10, 2020

e-learning concept. schooldesk and chalkboard on the laptop keyboard. 3d

The Families First Coronavirus Relief Act or “FFCRA” requires employers with less than 500 employees to provide paid leave to employees unable to work (or telework) for various COVID-related reasons. Particularly relevant as many schools open either virtually or with combination of in person and virtual instruction is FFCRA’s mandate for paid leave to care for children not in school or daycare due to COVID-19.

On August 27, 2020 the DOL added FFCRA FAQs 98-100 clarifying that:

  • FFCRA is not triggered if the child’s school is open for in-person instruction but the family chooses an e-learning option unless the e-learning option was chosen because the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine. See FAQ #99
  • A hybrid in-person / e-learning schedule triggers FFCRA for the child’s assigned e-learning days (those days when the school is effectively closed to that child although open to others) if the employee is needed to care for the child and no other suitable person available to do so. FAQ #98
  • The fact that the district is monitoring the local situation and may reopen to in-person instruction does not impact FFCRA coverage. FFCRA is triggered when the employee is needed to provide care because the school is not open to the child for in-person learning. FAQ #100

While helpful, the FAQs leave some questions unanswered. What if school is open only half days? What if school is open but the child must quarantine due to possible exposure? If the child is not experiencing symptoms and therefore has not sought a diagnosis does the parent’s absence trigger FFCRA? Absent further guidance to the contrary, consider these absences as FFCRA-covered anytime the school is effectively closed to that child.  

In other FFCRA news, back on August 5, 2020 we reported that a U.S. District Court for the Southern District of New York struck down portions of the DOL’s final rule implementing the FFCRA. The court invalidated the work availability requirement, much of the health care provider exception, the employer consent rule for intermittent leave, and employers’ right to require documentation in advance of leave. No word yet on whether the DOL will appeal the ruling (because a U.S. government agency is a litigant, the parties have 60 days to appeal rather than the normal 30 days). However, on September 3, 2020, the DOL sent a revised final rule on the FFCRA to the White House for review. Presumably revisions were made in response to this ruling.  Absent further guidance to the contrary, consider absences as FFCRA-covered anytime employees must care for their child because the school is effectively closed to that child. 

Federal Court Significantly Changes the FFCRA and Uncertainty Abounds

Contributed by Suzanne Newcomb, August 5, 2020

gavel on white background

As our readers know, the Families First Coronavirus Relief Act (FFCRA) requires employers with less than 500 employees to provide paid leave to employees who are unable to work (or telework) for a variety of COVID-related reasons (including caring for children not in school due to COVID) though December 31, 2020. On April 6, the U.S. Department of Labor (DOL) issued a final rule implementing the FFCRA. Shortly thereafter, the State of New York filed suit claiming the regulations unduly restrict employees’ right to paid leave. This week a federal judge in the Southern District of New York struck down portions of the DOL’s regulations, finding the DOL exceeded its authority. Specifically, the court invalidated the work availability requirement, much of the health care provider exception, the employer consent requirement for intermittent leave, and employers’ right to require documentation in advance of leave. All remaining parts of the DOL regulations are unaffected by the ruling. Because the case was decided under the Administrative Procedures Act, the ruling could apply nationwide (although the Judge did not address the reach of the ruling specifically).  

Work Availability Requirement. The DOL regulations make clear that an employer need only provide paid leave if it has work available for the employee. If there is no work for the employee to do, they are not entitled to paid leave, even if they would otherwise qualify. The ruling struck down the work availability requirement finding it had no basis in the language of the FFCRA itself, leaving employers to wonder whether they might be obligated to pay furloughed workers.   

Health Care Provider Exception. The FFCRA excludes “health care providers” from the universe of employees eligible for leave but, beyond medical doctors, left it to the DOL to define “health care providers.” The DOL defined the term very broadly to include essentially anyone working in the health care space (including, for example, receptionists, janitors, IT personnel). The court concluded the DOL overstepped its bounds and struck down the DOL’s broad definition of “health care providers”). However, it is unclear to which employees the health care provider exception applies because the Judge did not elaborate.

Intermittent Leave Only with Employer’s Consent. The DOL regulations allow eligible employees to take FFCRA leave intermittently where there is no risk that the employee might spread the virus to others (to take care of children at home due to school closings) but only if the employer agrees. The court agreed that limiting the use of intermittent leave was grounded in preventing the spread of COVID and therefore reasonable. However, the court then concluded that requiring employer consent had no basis in the statute, thus paving the way for employees to take intermittent leave over their employer’s objection.

Requiring Documentation Before Leave. The DOL regulations allow an employer to require an employee to provide documentation of the reason for the leave, the duration of the leave, and the authority for the quarantine order (if applicable). The court stated that to the extent these documentation requirements are preconditions to taking leave, they are invalid. Employers can require documentation, but cannot require employees to provide anything more than notice prior to commencing leave.  

What Does All This Mean for Me? The DOL will likely appeal the ruling. However, we do not yet know whether the court of appeals will halt application of the decision while the case works its way through the appeals process. It is also possible that the DOL will revise its regulations in response to the decision. Also, the Judge did not address the reach of the ruling specifically because the State of New York did not seek a nationwide injunction. For now, employers are cautioned not to rely on the provisions the court struck down without first carefully analyzing the situation with trusted employment counsel.   

Employees Entitled to Leave Because Camp is Closed? Yes.

Contributed by Suzannah Wilson Overholt, July 2, 2020

text summer camp written with chalk on a chalkboard

After schools and day cares closed in the spring due to the pandemic, employers and parents alike were hopeful that summer would bring a return to normalcy – especially in the form of camp for kids. Alas, that hope has not become a reality as many states have either delayed or prohibited the opening of camps. What are employers and working parents to do?

On June 26, the federal Department of Labor issued guidance stating that, under certain circumstances, an employee whose child’s day camp is closed as a result of COVID-19 may take leave under the Families First Coronavirus Response Act (FFCRA).  

As a reminder, the FFCRA requires employers with fewer than 500 employees to provide eligible employees with up to twelve weeks of expanded family and medical leave if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons. (You can read more about the FFCRA’s provisions in our earlier blog). A “place of care” includes summer camps and summer enrichment programs. 29 C.F.R. § 826.10(a). Therefore, an employee may request emergency FFCRA family leave to care for his or her child based on the closure of a summer camp or other summer program.  

An employee who requests leave on this basis is subject to the general requirements for requesting emergency family leave under the FFCRA and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2). The requirement to name a specific summer camp or program may be satisfied if the child applied to or was enrolled in the summer camp or program before it closed or attended the camp or program in prior summers and was eligible to attend again.  

The request for leave due to the closure of a camp or summer program must be based on planned enrollment and is not appropriate if the child has never attended the camp/program in question or any other camp/program, unless there were some indication that the child would have attended had the camp/program not closed in response to COVID-19. Actual enrollment in the camp/program is not required to qualify for leave. Factors to consider include: submission of an application or deposit before the camp’s closure; prior attendance in the camp/program; current eligibility for the camp/program; and being accepted to a waitlist pending the reopening of the camp/program. 

Employers should also consider that a child who met the age requirement for a summer camp for the first time in 2020 could not have attended the camp in prior years. Similarly, a child who recently moved to a new area may have to attend a different camp/program from prior years. Finally, parents may have delayed making arrangements for summer due to the pandemic. 

The status of summer camps is yet another area employers should monitor as their states re-open.

You Didn’t Get Your PPP Loan – What Now?

Contributed by Kelly Haab-Tallitsch, April 22, 2020

human character a question mark

The Small Business Administration stopped accepting applications for loans under the Payroll Protection Program (PPP) late last week after quickly reaching the program’s $349 billion limit. Congress is debating appropriating additional funds for the program and businesses shut out last week may get another chance. But in the meantime, employers should consider the other options under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, as discussed below.

Employee Retention Tax Credit

An Employee Retention Tax Credit of up to $5,000 per employee is available to an eligible employer whose business has been financially impacted by COVID-19. The refundable payroll tax credit is equal to 50% of up to $10,000 in “qualified wages” paid per employee. The credit is available for wages paid from March 13 to December 31, 2020.

An employer may be eligible for the tax credit for a calendar quarter if the employer has not taken an SBA loan under the CARES Act (i.e., a PPP loan, Economic Injury Disaster loan or other SBA loan) and:

  • the employer’s business is fully or partially suspended by government limiting commerce, travel or group meetings order due to COVID-19 during the quarter, or
  • the employer’s gross receipts are below 50 percent of the comparable quarter in 2019.

The “qualified wages” used to calculate the tax credit differ based on whether the employer has 100 or more full-time employees. If the eligible employer averaged more than 100 full-time employees in 2019, only wages paid to an employee for time that the employee is not providing services due to a full or partial suspension of operations by order of a governmental authority, or a significant decline in gross receipts qualify for the credit. But for employers with less than 100 full-time employees, wages paid to any employees during the period of economic hardship qualify for the credit. “Qualified wages” include cash payments plus the employer portion of health insurance premiums.

Any paid sick leave or paid FMLA under the Families First Coronavirus Response Act (FFCRA) is specifically excluded from “qualified wages” for the Employee Retention Tax Credit, as employers receive a separate tax credit for such paid leave wages.

Employers can be immediately reimbursed for the Employee Retention Tax Credit by reducing their required deposits of payroll taxes by the amount of the credit for the quarter. Eligible employers may also request an advance of the Employee Retention Credit by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. 

Payroll Tax Deferral

All employers are eligible to defer the payment of the employer’s portion of social security taxes that otherwise would be due between March 27, 2020 and Dec. 31, 2020, with no penalties or interest. Fifty percent (50%) of the deferred amount must be paid by December 31, 2021 and the remainder paid by December 31, 2022.  There is no dollar cap on the wages that are counted in calculating the taxes that may be deferred.

This payroll tax deferral is available to all employers, regardless of size, and there is no requirement to show any specific COVID-19-related impact. However, employers that receive a PPP loan may not defer taxes due after a PPP loan is forgiven.

Tax Credits for Paid Sick Leave and Expanded FMLA

Don’t forget that a tax credit is available to employers with less than 500 employees that provide paid leave to employees as required by the Families First Coronavirus Response Act (FFCRA). These refundable payroll tax credits are available to fully reimburse employers for the costs related to providing qualifying paid leave for reasons related to COVID-19 under the FFCRA.

An employer may claim a tax credit against the employer portion of Social Security taxes equal to 100% of the amount of paid leave provided under the FFCRA. If the amount of the tax credit exceeds the employer portion of the Social Security taxes, then the excess is treated as an overpayment and refunded to the employer. Employers claiming the tax credit will be able to retain an amount of federal employment taxes equal to the amount of the qualified leave wages paid, rather than depositing them with the IRS. An employer may claim the tax credits when filing its quarterly federal employment tax return or request an advance of the tax credits using Form 7200, Advance Payment of Employer Credits Due to COVID-19. Employers must retain records supporting each employee’s leave to substantiate the tax credit.

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.