Families First Coronavirus Response Act

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The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020 and includes two pieces of legislation –– the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).

FFCRA became effective April 1, 2020, and expires on December 31, 2020. Enforcement is through the U.S. Department of Labor's Wage and Hour Division (WHD).

To read the entire FFCRA, link here.

COVERED EMPLOYER

All private sector employers with fewer than 500 employees in the U.S. are covered, including include nonprofit employers. All public agencies with at least one employee are covered.

The size of the workforce is measured when the employee’s leave is to be taken. The census includes full-time and part-time employees working within the U.S. (including the District of Columbia) and its territories and possessions. Employees on leave, joint employees (those employed by you and another employer) and day laborers supplied by a temporary agency should be counted.

QUALIFYING REASONS

An employee is entitled to take either emergency sick leave or emergency family leave if he or she is unable to work or telework because the worker:

• is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• has been advised by health-care provider to self-quarantine related to COVID-19;
• is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health-care provider to self-quarantine related to COVID-19;
• is caring for his or her child whose school or place of care is closed (or whose child care provider is unavailable) due to reasons related to COVID-19; or
• is experiencing another substantially similar condition specified by the U.S. Department of Health and Human Services.

FURLOUGH, LAYOFF, LACK OF WORK

The FFCRA does not apply to employees when no work is available. In other words, if there was no work for the employee even if he or she did not have to comply with isolation or quarantine orders, the FFCRA would not apply. Lack of work most commonly results from layoff, furlough or the shutdown of an entire business because of an isolation order.

SMALL BUSINESS EXEMPTION

By definition, small business have fewer than 50 employees. FFCRA requirements apply to all such companies, with certain exemptions. A small business owner may apply for an exemption if he or she determines that:

• Leave would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at even minimal capacity; or
• An employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because she or he has specialized skills, responsibilities or knowledge of the business; or
• Insufficient employees are able, willing and qualified at the time and place needed to perform labor or services provided by the employee, and such labor/services are needed to operate at minimal capacity.

EMPLOYEE EXCLUSIONS

The FFCRA excludes some employees from coverage. They are:

• Health-care Providers –– Anyone employed at a doctor’s office, hospital, health-care facility, clinic, post-secondary educational institution offering health-care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health provider, laboratory or medical testing facility, pharmacy or any similar institution, employer, or entity.
• Emergency Responders –– Anyone necessary to transport, care, comfort and provide nutrition for patients, or other services needed for the response to COVID-19, including provision of health care.

NEW YORK'S LEGAL CHALLENGE TO THE FFCRA AND WHAT TO EXPECT IN CALIFORNIA

New York state challenged several aspects of the FFCRA in federal court, and won, requiring New York employers to provide workers with even greater benefits under the law. Although the state's victory applies only to workers in New York, we expect California also to challenge the FFCRA law, potentially requiring California employers to provide expanded benefits to workers as well. Here's a summary of the expanded benefits New York businesses must provide to their workers under the FFCRA:

• Availability of work is irrelevant to FFCRA eligibility. The previous FFCRA rule required that work be available to employees during the times they needed leave. It prevented employees who were not on the schedule or had been furloughed from taking advantage of FFCRA paid leave. The federal court ruled that if a worker is still employed, whether on the schedule or not, she or he should be allowed to use FFCRA leave. Presumably, this means that laid-off employees remain ineligible for FFCRA leave, as a layoff implies a permanent separation of the employment relationship. A furlough, in contrast, does not sever the employment relationship.
• Employees may take intermittent leave even if their employers don't agree. The previous FFCRA rule allowed workers to take intermittent leave only if their employers approved. The New York federal court disagreed, and ruled that an employer must allow leave if an employee needs intermittent leave or partial days or weeks off to care for a child whose school or child care center is unavailable because of COVID-19.
• Documentation is not required prior to taking leave. The FFCRA allowed employers to require certain documentation before a worker could take leave. The New York court ruled that such documentation is not required before leave is taken –– the employee must be allowed to start leave and to provide the documentation as he or she is able.
• The definition of health-care provider, for the purpose of being exempt from leave, is narrowed. In the regulations interpreting the FFCRA, the DOL defined the term "health-care provider" broadly. It included anyone who works for a health-care entity, as well as many who contract with one. The New York court ruled that the definition was too broad, but didn't provide a new definition. The court criticized the definition as relying entirely on the identity of the employer. Although a narrow definition wasn't adopted, we remind employers that the reason health-care providers were exempt from the FFCRA paid leave requirements was to ensure that there is a sufficient number of such workers to handle coronavirus cases and their complications.
Although these rule changes are not applicable to California businesses, the state's employers should be aware of trends in the law and the likelihood that such changes also will be imposed here, especially if the number of coronavirus cases continues to grow and impact our workplaces. Should California adopt these, or other rule changes, we will update this section accordingly.

DEPARTMENT OF LABOR REVISES FFCRA RULES FOLLOWING NEW YORK'S LEGAL CHALLENGE

The Department of Labor ("DOL") has issued revised regulations concerning paid leave under the Families First Coronavirus Response Act ("FFCRA"). The revised rule can be found here. https://www.dol.gov/newsroom/releases/whd/whd20200911-2. The revisions, effective September 16, 2020, were made in response to the federal district court decision in New York invalidating various aspects of the original regulations. We wrote about the New York decision above in anticipation of DOL changes to the FFCRA. The new rule makes key changes in the following ways:

• FFCRA is Only Available When Work is Available The new rule affirms that FFCRA is only available to employees if work would otherwise be available to them. FFCRA leave remains unavailable if an employee has been furloughed or the employer's business has closed because, in those circumstances, the employee has no work from which to take leave. The DOL stresses that an employer may not make work unavailable in order to avoid leave - the employer must have a legitimate, non-retaliatory reason why it does not have work for the employee to perform.
• Intermittent Leave is Available with Employer Approval The DOL confirmed that an employee can only take intermittent leave with an employer's permission and clarified the difference between intermittent leave and consecutive requests for leave. The DOL said intermittent leave and the requirement of employer approval wouldn't apply when an employee takes FFCRA in full day increments to care for a child whose school is operating on an alternate day (or other hybrid attendance system) because such leave would not be intermittent. Each day the school is closed creates a separate reason for FFCRA leave that ends when the school opens again for that student.
• Narrowed Definition of "Health Care Provider" The DOL amended its definition of health care provider in the context of the FFCRA's provision allowing employers to exclude health care providers from some or all forms of FFCRA leave. As originally defined, the "health care provider" was very broad and focused on the types of employers that could exercise the exemption. Now the DOL has narrowed the scope to focus on the work performed by certain employees and not the services provided by their employer. Whether an employee may properly be deemed exempt as a " will depend on whether the employee provides "health care services" under the regulations. Specifically, the new regulations provide health care provider" are (1) physicians and others who make medical diagnoses; and (2) any other employee who is capable of providing health services, meaning they are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. The regulations are clear that employees who do not provide health care services are not health care providers. For example, IT professionals, building maintenance staff human resources personnel, cooks, food service workers, records managers, consultants and billers are not considered health care providers even if they perform these services in a hospital, a clinic or other facility that does provide health care services.
• Revised Notice and Documentation Requirements The DOL amended the FFCRA notification and documentation requirements to reflect that (1) Employees need not furnish documentation concerning the need for leave before taking leave; but must provide the documentation as soon as practicable; (2) Employees may only require employees who take emergency paid leave to provide notice after the first workday, or portion thereof, for which the employee takes paid sick leave, and the employer may require notice as soon as practicable after the first day taking into account he circumstances of the leave; (3) Notice of expanded family leave is required as soon as practicable and, if the need for lave is foreseeable then it will generally be practicable to provide notice prior to the need to take leave.

FFCRA GUIDANCE ON RETURN-TO-SCHOOL ISSUES

Parents and children are navigating thorny issues about returning to school. Some school districts require students to attend remotely, and some districts provide parents the option of remote learning or in-person learning. Working parents especially have difficult decisions to make whether working remotely or not. The U.S. Department of Labor has issued guidance in the form of FAQs. In general, the DOL says, if parents who are given a choice decide on remote learning, the FFCRA does not apply. If school sessions are entirely remote, the FFCRA will provide leave to parents but may be unavailable later if the school returns to in-person classes. If a school alternates between in-person and remote learning, FFCRA leave is available for remote-learning days. Following is some of the advice found on the DOL's FFCRA website.

• The employee's child's school is operating on an alternate day (or other hybrid attendance) basis. The school is open each day, but students alternate between days attending school in person and days with remote participation. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
Yes, employees are eligible to take paid leave under the FFCRA on days their child is not permitted to attend school in person and instead must engage in remote learning, as long as they need the leave to care for their child during that time, and only if no other suitable person is available to do so. For purposes of the FFCRA and its regulations for implementation, the school is effectively closed to the child on days he or she cannot attend in person. The employee may take paid leave under the FFCRA on each of the child's remote learning days.
• The employee's school is giving parents a choice between having their child attend in person or participate in a remote learning program for the fall. The employee signed up for the remote learning option. Because the employee's child will be at home, are they entitled to take FFCRA?
No. The employee is not eligible for FFCRA because the school is not closed due to COVID-19 reasons –– it is open for the child to attend. FFCRA leave is not available for the care of children who are able to attend school in person. If the employee's child is home not because the school is closed, but because the parent has elected for the child to to remain home, the employee is not eligible for FFCRA paid leave. If the child is home because he or she is under a quarantine order advised by a health-care provider to self-isolate, the employee may be eligible for FFCRA paid leave.
• Out of concern for COVID-19, the child's school is beginning the school year under a remote learning program, but has announced that it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the year. Is the employee eligible for paid leave under the FFRCA in these circumstances?
Yes. The employee is eligible to take paid leave under the FFCRA while the child's school remains closed. If the child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school's operations.

SEE ALSO

• FAQs — Families First Coronavirus Response Act
• How Families First Coronavirus Response Act Interacts with Family and Medical Leave Act & California Family Rights Act

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