On June 26, 2020, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-4, addressing employee paid leave under the Family First Coronavirus Response Act (FFCRA) to care for a child whose summer camp, enrichment or other program is closed due to COVID-19. The FFCRA allows an employee up to 10 weeks paid leave (Expanded Family and Medical Leave – EFMLA) to care for a child(ren) “whose place of care is closed due to COVID-19 related reasons.”  29 C.F.R. 826.20(a)(v), (b). During the school year, it was relatively clear whether a school was closed, and whether the child went to the school. However, summer care, typically filled with various camps and other enrichment programs for school-aged children, can present more problems when an employer must determine whether the employee is eligible for EFMLA leave based on a summer camp they cannot sign up for whether it is closed, or enrollment limited.

In short, the DOL instructs that the question is: “whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons, which must be established by a preponderance of evidence in any enforcement action (i.e. more likely than not).”

The DOL recognizes a “multitude of possible circumstances” regarding summer camp registration prevents a “one-size-fits-all rule”, but offers some general examples:

  • Current enrollment (sufficient).
  • Mere interest in camp (insufficient).
  • Past attendance in 2018 or 2019 (sufficient so long as continued to meet requirements such as age range).
  • Being accepted to a wait list (sufficient).
  • Summer school registration (sufficient).
  • Past attendance but no longer eligible (i.e. too old) (insufficient).
  • Submission of application prior to camp closure (sufficient).
  • Submission of a deposit (sufficient).

Employers should remember the above threshold – did the employee provide proof that their child was more likely than not going to attend the cancelled program.

The U.S. Department of Labor just issued its Temporary Rule regarding its interpretation of Paid Leave under the Families First Coronavirus Response Act (FFCRA). 29 C.F.R. Part 826. I’m still digesting this and the IRS guidance (I just blogged about) so stay tuned. For now, the link above will get you to the Rule.

The DOL has finally issued the poster that employers must post notifying employee of their rights under the FFCRA in both English and Spanish. This must be posted and kept posted, “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” This requirement can be met, however, by e-mailing the notice poster to employees, or by posting it on your external or internal website.

On Saturday, March 28, the U.S. Department of Labor updated its Families First Coronavirus Response Act: Questions and Answers.  While this is still not the regulations that we are all waiting for, it does provide compliance assistance to employers until the regulations are issued. I’ll write about more issues later, but probably the single most question I get asked is related to whether a small business is exempt from the Families First Coronavirus Response Act (FFCRA). Here is the DOL’s current position (and what I expect the regulations will support):

A small business (less than 50 employees) is exempt from the FFCRA when “doing so would jeopardize the viability of the small business as a going concern”. Sounds subjective right? Well, here’s where the regs will come in handy. Until then, the DOL has stated that a small business is exempt if the following conditions are met:

  1. It employs less than 50 employees;
  2. Leave is requested due to school/day care closure due to COVID-19 reasons; and
  3. An authorized officer of the business has determined that one of the following 3 conditions are met:
    1. The application of the FFCRA would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
    2. The absence of of employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave, and these labor or services are needed for the business to operate at a minimal capacity.

So, for now, if you are a small employer and can answer yes to the above three criteria, until we get better guidance from the DOL, the President/CFO/CEO should document that the above conditions are met prior to denying leave to employees under the FFCRA.

Additionally, keep in mind that if you determine you are exempt for one, you are exempt for all. It is a business exemption – not an individual exemption. Thus, if you determine your business is exempt, you also cannot take advantage of the tax credits. It’s the you can’t-have-your-cake-and-eat-it-too theory.

And finally, if you do continue business as usual, keep in mind that you must still follow Governor Walz’s stay-at-home order until April 10, and those that can work remotely, must.

Those that cannot work remotely, should be given social distance opportunities (i.e. skip the handshakes, open up new spaces for breaks), PPE where appropriate, sanitized work space, etc. however possible. Per the EEOC’s guidance, yes, you can take temperatures of those reporting to work during a pandemic, so long as you follow appropriate guidelines.

On September 11, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division revised the paid leave provisions (including sick leave and expanded family and medical leave) of the Families First Coronavirus Response Act (FFCRA). As a reminder, the paid leave requirements under the FFCRA are (currently) set to expire on December 31, 2020.

Specifically, the DOL made the following clarifications related to paid leave:

  • Employees may only take FFCRA leave if work would otherwise be available to them.
    • If an employer closes the worksite, the employee is not entitled to paid leave.
  • An employee must have employer approval to take intermittent FFCRA leave.
    • Example – Medical need due to health conditions
    • Example – To care for a healthy newborn or adopted child
  • The term “healthcare provider” has been redefined (narrowed) to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or provide certain medical services that would adversely impact patient care in the event they were not provided.
  • Employees must provide documentation supporting their need for extended FFCRA leave to their employer “as soon as practicable”.

For more information on the FFCRA and related COVID-19 wage and hour issues, see my past blog posts on the subject.

The IRS has finally issued much-awaited FAQ on Families First Coronavirus Response Act (FFCRA). Notably, the IRS has taken a much stricter interpretation of the FFCRA than many practitioners (including me!) were when attempting to interpret the law without any guidance. I highly encourage businesses to review the website and FAQ – because the FFCRA is a tax credit act, HR may usually shy away from reading IRS guidance. However, it does provide important guidance about eligible employees, ages of children, amount of parents that can take the leave at one time, etc.

The guidance also provides that employers must retain records and documentation related to and supporting each leave request as well as Form 942, Employer’s Quarterly Federal Tax Reurn and Form 7200, Advance of Employer Credits Due To COVID-19, and any other filings made to the IRS. In order to get the news out quickly, I’m going to keep this short and sweet for now and encourage all employers (both HR and finance side) to start by reviewing the IRS FAQs on COVID-19 and FFCRA.  Combine that guidance with the DOL guidance and I think we’re starting to get a much better handle on this than a few days ago!

When navigating the Families First Coronavirus Response Act (“FFCRA”), Minnesota employers should not forget about Governor Walz’s Executive Order 20-02. This order states that district schools must provide care to, at a minimum, district-enrolled students 12 and younger of emergency workers. The state has classified (so far) workers into “Tier 1” and “Tier 2” in this guidance.

What does this mean? Tier I workers will not need the 12 weeks of EFMLA (I hesitate to say exempt), as they do not need leave to care for a minor child (unless the child is 13-17 and their parent is unwilling to leave their child alone). Similarly, Tier I workers would not need emergency paid sick leave (see my other blog) for reason #5 (to care for child whose school closed).

TIER 1 WORKERS

  • Healthcare personnel (PCAs, pharmacy, mental health)
  • Emergency medical services personnel (full-time)
  • Law enforcement / firefighter personnel
  • Correctional services
  • Courts (full-time employees)
  • Public Health

TIER 2 WORKERS

Minnesota has further clarified (though not an order from the Governor) that schools “should make every effort” to provide care to “school-aged children” of Tier 2 workers (not the actual guidance expands upon each of the below which I’m not going to specifically post). Thus, if an employee has a school district that is willing/able to provide care for Tier 2 workers they also should not need EFMLA:

  • Educators, child care workers
  • State and local essential IT personnel
  • State workers essential for continuance of unemployment insurance
  • Substance disorder treatment workers
  • Medical examiners
  • National Guard (if activated)
  • MNDoT employees
  • Public works
  • Water treatment, wastewater
  • Solid waste and infectious and hazardous waste management
  • Day-to-day operations/emergency response for gas and electric utilities
  • Food distributions workers
  • Other shelter staff and outreach workers
  • Telecommunication network operations

In short, if you are a Tier I business, it is unlikely that your employee should need EFMLA. If you are a Tier I business, it would depend on whether your employee(s) can get school coverage at their district for their child(ren).

As time goes on, I will do my best to update you all with questions I am asked frequently about the Families First Coronavirus Response Act (Families First Act or FFCRA) which includes the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (SPSLA).  This post will be updated continuously with my read of the Families First Act as much as I am able (you’d be surprised how many employers think they are the first to ask a question – I assure you, you are not alone!).

  1. Is the 80 hours of paid sick leave in addition to PTO/vacation/sick time already offered? YES.  The EPSLA specifically states that an employee “may first use” the paid sick time (for COVID-19 reasons) and an employer “may not” require them to use other leave first.  Sec. 5102(e).
  2. When counting 500 employees for EFMLA, does the 75 mile rule apply as with FMLA? NO. For purposes of EFMLA, the term “eligible employee” is all employees who have been employed for 30 days – the exclusion for employees who work at a worksite of less than 50 employees within 75 miles of another worksite was stricken.
  3. Does the revision to the 500 employee threshold (versus 50) change the FMLA?  NO. The EFMLA only changes the FMLA definitions “with respect to leave under section 102(a)(2)(F)”.
  4. Does it apply to non-profit corporations?  YES.  Section 7001 and 7003 allow for the “refundability of excess credit”.  Though, you should contact your CPA if you have questions – I am not a tax attorney!
  5. What is the Effective Date?  April 2, 2020 – December 31, 2020.
  6. Do employers of 500+ employees have to provide EFMLA, even though they do not get a tax credit?  NO.  Employers with 500+ employees do not need to provide EFMLA and are ineligible for the tax credit.
  7. When will the DOL regulations be published regarding whether employers of less than 50 employees are exempt?  According to the DOL website, this is anticipated in “April 2020”.  Given it goes into effect April 2, hopefully by April 1.
  8. Is the 12 weeks EFMLA in addition to FMLA, for a total of 24 weeks?  NO.  It just adds another reason for FMLA for a broader group of employees.

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (Families First Act or FFCRA) into law which, among other things, amends the Family Medical Leave Act (FMLA) with the Emergency Family and Medical Leave Expansion Act (EFMLA). Here is what employers need to know about Public Health Emergency Leave (“PHEL”):

  • Employees must have been employed for 30 calendar days with the employer.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of EFMLA would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • Employee must have a “qualifying need related to a public health emergency”.
    • “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency [COVID_19].”
      • Child care provider must be someone who receives pay to take care of a child on a regular basis.
  • The first 10 days are unpaid.  Employees “may elect” to substitute any accrued vacation, PTO, personal leave, sick or medical leave for these 10 days.
    • Note, it does not state that employers may require use of PTO, etc.
  • After day 10, leave is paid after that at an amount “not less than” 2/3rds of an employee’s regular rate of pay (there are specifics in the Act on how to calculate for employees with varying hours).
    • Capped at $200/day and $10,000 in the aggregate per employee (which equals the employer tax credit).
    • Employers signatory to a multi-employer CBA may make contributions to a multiemployer fund, plan or program (read the Act for more info on this).
  • An employee of an employer with less than 25 employees who takes EFMLA does not need to be restored to their position if certain conditions are met (which is another blog for a later day).
  • Ends on December 31, 2020.
  • Employers who are not subject to the FMLA (under 50) cannot be sued by employees for violation of Emergency FMLA as they have no private right of action. However, the DOL may still investigate and sue on their behalf.

EFMLA is one of several in the Families First Act that will impact employers. See my other blogs for details regarding the Emergency Paid Sick Leave Act and Tax Credits for Paid Sick and Paid Family and Medical Leave.

In addition to my blog about the Emergency Family and Medical Leave Expansion Act (EFMLA), the Families First Coronavirus Response Act (Families First Act or FFCRA) also contains the Emergency Paid Sick Leave Act (EPSLA).  Emergency paid sick time (EPST) will go into effect 15 days after the Families Act is enacted – April 1, 2020. The EPSLA applies to employers with less than 500 employees and generally works as follows (obviously summarized here for your reading pleasure):

  • Every employee is entitled to employer-paid sick time if they are unable to work (or telework) because of COVID-19 and they are:
    1. Subject to a quarantine or isolation order.
    2. Advised to self-quarantine by a health care provider.
    3. Experiencing symptoms.
    4. Caring for an individual subject to (1) or (2) above.
    5. Caring for a son or daughter whose school or child care was closed or whose child care provider is unavailable.
    6. Experiencing any other “substantially similar condition”.
  • Full-time employees are entitled to 80 hours of paid sick time.
    • The definition of “employee” and “employer” under the EPSLA are too specific for this general blog audience. If your business is in a unique situation, read the Act or call an attorney for interpretation.
  • Part-time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”
  • Caps on paid sick time – employers do not need to pay more than:
    • $511 per day and $5,110 in the aggregate for the use for reasons 1-3 above.
    • $200 per day and $2,000 in the aggregate for the use in reasons 4-6 above.
  • Rates to pay:
    • The employee’s regular rate (as defined by the FLSA) or minimum wage, whichever is greater.
      • For part-time employees, it is an average (see the Act).
    • For paid sick time related to reasons 4-6 above, the required compensation is only 2/3rds of the employee’s regular rate.
  • Employers signatory to a multiemployer bargaining agreement may make contributions to the multiemployer fund, plan or program (see the Act for more details).
  • Does not carry over into 2021.
  • Paid sick time “shall cease beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time” set forth in 1-6 above.
  • Employers may not require employees to find a replacement for their shift.
  • Paid sick time must be available to the employee “immediately” regardless of how long the employee has been employed by the employer.
  • Employees may first use paid sick time before PTO, vacation/sick time – and cannot be forced to first use other paid time off banks if available. A word of caution – given the generous nature of the leave, I think it is safe to presume that any employee who uses their normal paid time off instead of paid sick time is going to draw some red flags in an investigation that they were not allowed to use paid sick time (because why would they? There is zero upside to an employee using PTO versus paid sick time for one of the reasons above).
  • Notice poster must be posted (the DOL will have a notice available with 7 days).
  • Shocker…employers cannot retaliate or discriminate against employees who use this leave or file a complaint about the same.
  • Violation is considered the same as violating minimum wages and unlawful termination under the FLSA. Which means employers who violate this Act are liable for the backwages – doubled, plus having to pay an employee’s attorneys’ fees (plus your own attorneys’ fees, among other things). In other words, you don’t want to mess this up…
  • The DOL Secretary must issue guidelines within 15 days following enactment.
  • After any portion of the first workday that an employee receives paid sick time, an employer may require an employee “follow reasonable notice procedures in order to continue receiving such paid sick time”.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of paid sick time would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • The Act expires on December 31, 2020.