DOL Issues Temporary Rules Related to FFCRA

DOL PRESS RELEASES, PROMISED WEBINAR, FRIDAY 4/3/2020, and ONLINE DIALOGUE

On the day that the law went into effect, April 1, 2020,  the Department of Labor (“DOL”) issued its temporary rule about the Families First Coronavirus Response Act (“FFCRA”).  The new rule (123 pages) is now available, and a summary from the Department of Labor is also available.

The KRCL Employment Law Practice Group has provided detailed guidance on FFCRA in several previous posts. All of this data is coming to employers in a very hurried manner, given the Coronavirus pandemic and the United States emergency response.  FFCRA became law on March 12, 2020, and these regulations followed in lightning speed,  two weeks later.

This newly issued regulation follows initial guidance and other statements from the DOL and lays out what the law achieves, in expanding leave for child care reasons during the CV-19 emergency and in providing paid sick leave for employees with qualifying reasons (e.g., being ill or subject to quarantine due to the virus).  Other blog entries on these various topics are noted above.

What the Regulation Covers

Aside from the general summary and comments of the DOL about FFCRA, the Agency provides specifics as to the following:

• Eligibility
• Intermittent leave
• Notice requirements
• Documentation required
• Maintenance of health care
• Job restoration and exemption from same
• Record-keeping

Exploration of these rules will continue over the next few weeks and months (FFCRA expires on December 31, 2020).  Further explanation from the DOL may be forthcoming as well, and the Agency has promised to present a Webinar on Friday, April 3, 2020 (see link below).

As many employers are concerned about documentation requirements, particularly given the heavily regulated aspects of the Family & Medical Leave Act (“FMLA”) to which FFCRA is connected, below is a quick summary of those requirements:

Notice and Documentation

Sick Leave

First, employees must provide reasonable notice, “as soon as practical” – which may be the first day that the employee receives or needs sick leave.  Documentation will include an employee statement about the following:

• The employee's name.
• The leave date(s) requested.
• The CV-19 reason for leave.
• And a statement that the employee can't work or work remotely due to his CV-19 problem.

The employee may inform the employer “orally,” but in that case the employer has the obligation to document the leave and keep that documentation for four years.  It is probably a good practice for employers to seek a signed statement from the employee, when possible.  The onus remains on the employer to have proper documentation.

Additionally, an employee must provide the name of the government entity that issued the quarantine or isolation order, to which the employee is subject, if that’s applicable for the leave request.

As to anyone choosing “self-quarantine,” he or she must identify the health care provider making that recommendation.  And the same process applies, if the person is caring for someone under quarantine or isolation.

Child Care Leave

In regard to child care necessitating leave (with the presumption of one caregiver), the employee must provide:

• The name of the child being cared for.
• The name of the school, place of care or child care provider that closed or became unavailable.
• A statement advising that no one else is available for this care.

Other FMLA Certification

The DOL requires that normal FMLA certification rules apply to an employee's own serious  (CV-19) health condition, or if the employee is required to care for the employee's spouse, son, daughter or parent with the same medical issue.

Denial of Leave?

If the employee fails to follow these requirements, leave might be denied.  In that case, however, the employer first has to provide the employee notice of the failure and a chance to correct the deficiency.

Employers of Less than 50 or Less than 25 Employees

NOTE – while FFCRA applies to all employers of less than 500 employees, the Act also provides possible exemptions:

1. Leave exemption:  If the employer has less than 50 employees, it may be exempt, if it can show that following the law would “jeopardize the viability of the business as a going concern.”  The factors likely present a high hurdle:

• • The leave would cause the employer’s expenses and obligations to “exceed available business revenue” resulting in the employer ceasing operations “at a minimal capacity”;
  • The absence of the employee presents a “substantial risk” to the employer;
  • The inability of the employer to find qualified workers to replace the employee needing leave; and
  • The identified labor is needed for the company to exist “at a minimum capacity.”

The factors are documented internally and kept as part of the records of the company (for possible review, if a question arises in the future).

2. Job restoration exemption:  Employers of less than 25 employees may not have to restore a person to a job, at the end of any extended leave due to child care, if 4 conditions are met:

1. • The employee took leave for qualifying child care reasons.
   • The position no longer exists due to economic conditions (related to CV-19).
   • Reasonable efforts were made for restoration, without success.
   • The employer makes continued efforts at job restoration for a “reasonable” time period, deemed to be one year.

Again, the employer is required to document the situation internally.

WEBINAR, FRIDAY, April 3, 2020:

The DOL promises to have a Webinar on the FFCRA tomorrow, Friday, April 3, 2020, see DOL press release.

Online Dialogue with the DOL – until April 10, 2020.

Finally, the DOL has announced that its online “dialogue” with employers and employees continues through April 10, 2020.  Register online to participate and submit your questions or ideas.

Andrea “AJ” Johnson [link] is co-chair of the KRCL Employment Law Practice Group.  She may be reached at ajohnson@krcl.com; 713-705-3769, her cell.