As previously advised, the US Department of Labor has issued a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”. (Click here and here.) The DOL updated the “Questions and Answers” webpage again today, adding 20 new questions and answers (##60-79). These updated Questions and Answers primarily address issues for employees regarding FFCRA leave but include some questions directed towards employers such as computing leave pay for seasonal workers with irregular schedules, employee counts for staffing agencies and the DOL 30-day stay of enforcement actions for FFCRA violations.
Here is a summary of the issues addressed by the DOL’s third update to the Q&A page:
- For staffing companies attempting to calculate the number of employees for determining whether they are subject to the FFCRA, they are to include all workers they consider to be “employees,” whether full-time or part-time, including those workers for whom they are considered a “joint employer.” (#74; see also #2.)
- Provides a four-step process by which to calculate FFCRA leave pay for those seasonal employees with an irregular schedule, and describes how employee is entitled to: (#75)
- Full daily paid leave amount if they are unable to work because they are subject to a quarantine isolation order, have been advised by a doctor to self-quarantine; or is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
- Two-thirds of the base daily paid leave amount if reasons for leave is:
- (1) To care for an individual subject to a self-quarantine order or has been advised to self-quarantine by a medical provider,
- (2) To care for a child whose school or care provider is closed due to COVID-19.
- Clarifies that a seasonal employee is not entitled to FFCRA leave pay if they are not scheduled to work, i.e. if it is the off-season.
- Reiterates that DOL will not bring any enforcement actions against employers for violations of the FFCRA until at least April 17, 2020, provided the employer has made “reasonable, good faith efforts” to comply with the FFCRA (but notes that the DOL reserves the right to “retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.” (##78-79.)
- Describes eligibility for leave as a result of quarantine or isolation orders as well as deciding to self-quarantine while seeking a medical diagnosis. (##60-62.)
- Clarifies FFCRA leave eligibility for an employee to care for someone else is limited to an immediate family member. (## 63-66.)
- Defines “place of care” and “child care provider.” (##67-68.)
- Explains that only one parent/guardian is eligible for leave to take care of a child whose school or child care has closed, i.e. leave is not available to an employee if the other parents/guardian is available to provide care to the child. (#69.)
- Clarifies that a school providing “remote learning” to a child at home is considered “closed” for purposes of the FFCRA since the physical location is now closed. (#70.)
- Provides that in certain circumstances, an employee may take up to two weeks of paid sick leave to care for a child other than their own child if that individual is subject to a quarantine order and has a need for the employee to care for him or her; however, an employee is not entitled to expanded family and medical leave except to care for the employee’s own “son or daughter.” (##71-72; see also #40.)
- Notes that the DOL is still waiting for the Department of Health & Human Services to define “substantially similar condition” that may be eligible for FFCRA leave. (#73.)
- Clarifies that employee is not entitled to FFCRA leave if already receiving workers’ compensation or temporary disability benefits. (#76.)
- Describes scenarios in which an employee already on an employer-approved leave of absence may be eligible for FFCRA leave. (#77.)
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.