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2nd UPDATE: DOL Again Updates Question & Answers Page for Families First Coronavirus Response Act

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Wage & Hour

Last week, we alerted you to the fact that the US Department of Labor had issued a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the FFCRA. (Click here and here.) Late Saturday night, the DOL again updated the “Questions and Answers” webpage and added more than 20 new questions and answers (## 38-59) regarding various issues under the FFCRA for both employers and employees. The DOL also revised its guidance regarding the types of documentation required to document FFCRA leave to simply the types of documents required and essentially punt the question to the IRS to provide forms/instructions for claiming the FFCRA tax credit. (## 15 & 16)

Here is a summary of the other various issues addressed by the DOL’s second update to the Q&A page:

  • Explains that the term “employee” for purposes of determining who is eligible for FFCRA leave shall have the same meaning as the term “employee” used in the FLSA. (#38):
    • “Employee” includes full-time employees (work 40 or more hours per week); part-time employees (less than 40 hours per week) and “joint employees”, provided that the employee has been employed for the required 30 days preceding the FFCRA’s effective date. (## 48 & 49)
  • Clarifies which employers are subject to the FFCRA as having less than 500 employees, although some small businesses (less than 50 employees) may be exempted from the FFCRA (#39):
    • Unlike regular FMLA, employers must count employees as of the date the employee is to take leave. (#50)
    • Small businesses (less than 50 employees) can be exempted from providing paid FFCRA leave if “authorized officer” determines one of the following:
      • Expense of compliance with FFCRA exceeds the company’s revenues and will cause business to cease even minimal operations;
      • Employee’s absence will cause substantial risk to company’s financial health and/or operational capabilities; or
      • Insufficient employees remaining to all company to meet minimal business operations. (## 58-59)
  • Defines “son or daughter” to mean any biological, adopted and/or foster child and can include children over the age of 18 if that child has a physical or mental disability and is unable to “self-care” because of the disability. (# 40)
  • Establishes a “hot line” for employees to call when they believe employer is not complying with FFCRA leave requirements. (## 41-42)
  • Describes an employee’s general right to return to work after taking FFCRA leave except in limited circumstance where employer can show hardship conditions to justify failure to return. (# 43)
  • Clarifies that employee can take FFCRA leave, and timing for such leave, even if employee has already exhausted FMLA leave. (## 44-45)
  • Allows time that employee is on FFCRA leave to count towards eligibility for employer-provided health coverage. (# 51)
  • Discusses FFCRA’s applicability to certain public-sector employees. (## 52-54)
  • Defines “health care provider” who can certify FFCRA leave as including “a licensed doctor of medicine, nurse practitioner or other health care provider” who is also allowed to issue FMLA certifications. (# 55)
  • Discusses which “health care providers” and “emergency responders” who an employer may exclude from paid leave but urges employers to be “judicious” in making these determinations so as to minimize the spread of COVID-19. (## 56-57)

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.