DOL Issued New FAQ Last Friday
Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.
I was going to send out a quick reminder that by now we should all have our FFCRA Notice posted and emailed to our employees and we should also be well on the way to having our draft written FFCRA leave requests completed. (You won’t technically qualify for the tax credit without them….) But, late last Friday the DOL issued its Fourth set of FAQ’s regarding the FFCRA, so this update is going to be a little more detailed than I had originally planned.
Some of the highlights of the FAQ’s are below. If you want to read them in their entirety, you can do so here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. As you can see, the FAQ’s reiterate a lot of what we saw in the DOL’s Temporary Rules.
Shelter-in-Place Orders and No Self-Quarantines: The DOL addresses how employers should evaluate FFCRA leave entitlement triggered by stay-at-home orders. For example, the DOL makes it clear that even if an employee is subject to a stay-at-home order, she is not entitled to paid leave if her employer does not have work for her due to the stay-at-home order.
Self-quarantine/isolation: The DOL makes it clear that an employee is not entitled to paid leave if they self-quarantine on their own without any input from a health care provider.
Watch your Terms: “son” and “daughter” are pretty broadly defined beyond the common meaning in determining EPSLA leave to care for one due to school/day care closure. Similarly, “individual” whom one can take EPSLA leave to care for is also broadly defined: “…. an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them in a quarantine situation.”
Common Sense Child Care: In a fit of common sense, the DOL makes it clear that generally only one person is needed to care for a child and that some modicum of care must actually be required. “You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs. See Question 20 for more details.”
“Substantially Similar Condition” Is Still Unknown: The DOL notes that the Department of Health and Human Services (HHS) has not yet issued guidance on what this last reason for EPSLA leave may include, but, if HHS does not, the DOL will do so.
No Work-No Leave: The DOL provides more affirmation that an employee is not entitled to leave under the FFCRA if the employer does not have work for him to do.
Tele-School is Still Closed: The DOL explains that a school is still “closed” for purposes of the FFCRA even if it is conducting distance learning “if the physical location where your child received instruction or care is now closed…” This begs the question of the application of this provision to children who were already conducting 100% of their schooling online…..
Payment of Seasonal Employees with Irregular Schedules: The FAQ’s provide detail on the method to be used to calculate paid leave for a seasonal employee with an irregular schedule. The DOL once again requires the use of the six month look-back period.
No FFCRA Leave if You are Out on Worker’s Comp.: Generally, an employee who is unable to work due to a workers compensation injury will not be eligible for paid leave under the FFCRA. Remember, no-work no-leave. An employee released to light duty may be entitled to FFCRA paid leave.
Non-Enforcement Grace Period Does Not Mean You Don’t Have to Comply Now: The DOL makes clear that the FFCRA was effective April 1. The DOL has a “limited stay of enforcement” until April 17, but it will retroactively enforce violations back to April 1 if they have not been corrected. Meaning: Get your forms, systems and checklists in order now.
Don’t hesitate to reach out if I can be of assistance in putting together your forms, checklists and policies.