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FFCRA ELIGIBILITY, NOTICE & DOCUMENTATION REQUIREMENTS

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FFCRA ELIGIBILITY & EMPLOYEE STATUS

The Families First Coronavirus Response Act (“FFCRA”), requires that covered employers must provide employees with (i) Paid Sick Leave and (ii) Paid Family Leave for certain Coronavirus-related reasons. The FFCRA becomes effective April 1, 2020.

The WHD has published QUESTIONS AND ANSWERS on the FFCRA which provides significant guidance.

THE FAQs CAN BE FOUND HERE: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Employers should immediately review the FAQ’s which provide answers to many questions such as what happens if the business closes or the employees are laid off prior to April 1, 2020.

One key point is that employees who are employed as of April 1, 2020 are entitled to the Paid Sick Leave and/or Paid Family Leave benefits as applicable.  Employees who are not employed as of April 1st are not eligible to the benefits offered under the FFCRA.

Below are some excerpts and summaries of key Q&A’s provided by the DOL which are presented FROM the employee’s perspective as to eligibility of FFCRA benefits if the employer closes business operations:

  • What does it mean to be unable to work, including telework for COVID-19 related reasons?
    • You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.
    • If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
  • If my employer closed the worksite before April 1, 2020, can I still get paid sick leave or expanded family and medical leave? 
    • No. If, prior to the FFCRA ’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.
  • If my employer closes my worksite on or after April 1, 2020 but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
    • No. If your employer closes after the FCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.
  • If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
    • If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.
  • If my employer is open, but furloughs me on or after April 1, 2020 can I receive paid sick leave or expanded family and medical leave?
    • No. 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. However, you may be eligible for unemployment insurance benefits.
  • If my employer closes my worksite on or after April 1, 2020 but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?
    • No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.
  • If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? 
    • No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.
    • You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced.
  • If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?
    • If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage.
    • If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
    • If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.
EMPLOYEE STATUS

With many employees having been placed on “furlough” or placed on “inactive status” or other temporary arrangement taking the employee out of work since the onset of the Stay Home Orders, and as many, if not most of these employees will not soon be returned to work, employers should evaluate whether a formal layoff (whether temporary or permanent) is now in order.

A “layoff” is the same as a termination of employment for purposes of payment of final wages.

An employee who has been placed on furlough or inactive status or other non-working classification for longer than a ten day period of time, without a specific return to work date, may be considered to have been “laid off” which would trigger the payment of final wages.

Payment of Final Wages at Layoff

In order to avoid any allegation that the California wage and hour requirements for payment of final wages has been violated, final wages and any accrued and earned vacation/PTO benefits must be paid immediately, as of the effective date of layoff.  An employer is not required to pay an employee for accrued, but unused paid sick leave at time of separation of employment.

UNDER 50 EMPLOYEE EXEMPTION TO FFCRA

The FFCRA has indicated that there MAY be an exemption for employers with less than 50 employees. The Secretary of Labor is expected to further address this issue; however, in the meantime, the WHD’s Question and Answer page addresses this as follows:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

FFCRA NOTICE

The U.S. Department of Labor (DOL) Wage & Hour Division (WHD) has published the posters which all covered employers are required to display “in conspicuous places on the premises of the employer where notices to employees are customarily posted.”

The employer must provide the notice to current employees and new hires. Recently laid-off employees do not need to be provided with the notice. Employers also do not need to provide the notice to prospective employees.

CLICK HERE FOR THE MODEL NOTICE:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The WHD has published a Question & Answers page with additional information on the poster requirements.

CLICK HERE: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

How Should the Notice Be Posted or Distributed?

Due to the remote work arrangements with many employees, the guidance clarifies that employers may satisfy the posting requirement for remote workers by:

  • emailing the notice to employees;
  • directly mailing the notice to employees; or
  • posting the notice on the employer’s internal or external website.
DOCUMENTATION REQUIREMENTS
Extended Paid Sick Leave

If an employee seeks to take FFCRA Paid Sick Leave, the employee must require provide appropriate documentation in support of the reason for the leave, including:

  • the employee’s name,
  • qualifying reason for requesting leave,
  • statement that the employee is unable to work, including telework, for that reason, and
  • the date(s) for which leave is requested
  • Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine.

This may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

Documentation for Paid Family Leave

If an employee requests to take FFCRA Paid Family Leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, the employee must provide appropriate documentation in support of such leave, (as would be required conventional FMLA leave requests.)

This could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason.

Documentation for Tax Credit

If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

Additional Information

Covered employers are not required to post the notice in languages other than English. However, the Department of Labor is going to translate the notice into other languages and make those notices available to employers for their voluntary use.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.