FFCRA Update

Mar. 2020

The Department of Labor (DOL) recently updated its question and answer section on the FFCRA, which came in response to increased questions by employers on how the FFCRA will impact them. Here is a summary of the DOL guidance:

Employers that believe they are exempt from the child-care or coronavirus paid Sick Pay and/or Expanded FMLA (employers with less than 50 employees) are encouraged to gather documentation, but not send it to the DOL as there is addition regulation and guidance anticipated that will help clarify this issue.
Employees are limited to two weeks of eligible Sick Pay Leave regardless of the reason for eligibility. Employees cannot take more than two weeks, even if they meet more than one of the qualifying reasons.
Employers must and are encouraged to obtain and maintain records when employees take paid Sick Pay or Expanded FMLA. Employees must provide documentation demonstrating school closures, scheduled testing for COVID-19, a COVID-19 diagnosis, the need to care for someone diagnoses with COVID-19, the need to isolate due to a COVID-19 diagnosis, or the need to provide care for someone in self-isolation after a COVID-19 diagnosis.
If Employers plan to claim the tax credits for payment of Sick Pay under the FFCRA, documentation needs to be retained.
Employees who are capable of telework (i.e. their Employer makes telework available) are not eligible for paid leave even if they otherwise meet the criteria for paid Sick Pay or Expanded FMLA leave.
Paid Sick Pay cannot be taken incrementally (i.e. whole days need to be taken, employees cannot supplement limited work hours with paid Sick Pay under the Act, but instead are directed to use the expanded unemployment benefits to supplement the lost wages.
That said, employees are not allowed to collect unemployment benefits for any time they receive paid Sick Pay or Expanded FMLA under the Act. Receipt of paid leave makes the receiving employee ineligible for unemployment benefits during the paid leave period.
Employers, unless otherwise exempted, must continue healthcare coverage for employees who are eligible and take paid Sick Pay or Expanded FMLA leave.
Employees, if only eligible for 2/3 wages under the FMLA expansion (see our March 23, 2020 post: https://mil-law.com/families-first-coronavirus-response-act-ffcra/), the employee may use preexisting PTO to supplement and receive the additional 1/3 if the employer permits it. Employers will not receive a tax credit for any supplemental PTO paid during this period.

Continue to follow our blog for updates as we continue to monitor this constantly developing situation.