The Department of Labor has again updated its guidance regarding the Families First Coronavirus Response Act ("FFCRA").  How we got here:

• The FFCRA went into effect on April 1, 2020, which we wrote about here.
• The DOL issues temporary regulations interpreting the law, which we wrote about here.
• Last month, a New York federal court invalidated portions of those regulations, which we wrote about here. 
• In light of this decision, the DOL reevaluated portions of the temporary regulations and subsequently issued “revisions and clarifications” to those temporary regulations, which went into effect on September 16, 2020. 

Below we summarize the DOL’s interpretative guidance, and note in bold where the DOL has either reaffirmed or changed its guidance in light of the federal court decision.  As a reminder, the law expires on December 31, 2020. 

1. The guidance expands on the meaning of an employer with 500 employees, including:
   • The employer should look at headcount at the time the employee would take the leave;
   • The count extends to those employed within the US and its territories;
   • The count should extend to capture all categories of employees – full time, part-time; temporary employees who are jointly employed by it and another employer (regardless of whether the jointly-employed employees are maintained on only the employer’s payroll or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship);
   • Independent contractors are not included in the count;
   • If a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the Fair Labor Standards Act.  If those entities are found to be joint employers, all of their common employees must be counted;
   • In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act.  If two entities are an integrated, then employees of all entities making up the integrated employer will be counted.
2. The guidance also expands on the 50-employee small business exemption.  In short, if the employer can meet certain criteria set forth in the guidance, it can claim the exemption.  It does not have to file a written application to avail itself of the exemption.  More specifically:
   • The exemption may apply to an employer, including a religious or non-profit organization with fewer than 50 employees related to COVID-19 school closure or child-care related leave “when doing so would jeopardize the viability of the small business as a going concern.”
   • To claim this exemption, an authorized officer of the business has determined that one of the following would occur:
     • A) The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
     • B) The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
     • C) 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 or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
3. The law exempts a “health care provider” from the leave entitlement.  The regulations initially defined who qualified as one, but the federal court invalidated it as overbroad.  In light of the court’s ruling, the DOL regulations revised and limited the definition of “health care provider” to employees who meet that definition under the FMLA regulations or who 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.
4. The DOL’s 30-day temporary period of non-enforcement ended on April 17, 2020.
5. The benefits provided under the FFCRA were available as of April 1, 2020 and cannot be provided retroactively.
6. The guidance confirms that employees taking leave related to child care are entitled to up to $12,000 in the aggregate – $2,000 for the 2 weeks of paid sick leave plus $10,000 for the 10 additional weeks of paid FMLA leave. 
7. The DOL provides the following guidance regarding the concurrent use of leave:
   • An employer may require, or an employee may elect with the employer’s permission, that the employee use his or her employer-provided paid leave concurrently with paid expanded FMLA leave.  
   • An employer may not require an employee (but it can permit an employee to elect) to use his or her employer-provided paid leave concurrently with the two-weeks of FFCRA paid sick leave.  This remains the case regardless of whether the unpaid period of expanded FMLA leave is running concurrently with the FFCRA paid sick leave. 
8. For purposes of the FFCRA, a federal, state, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority.  However, for such an order to qualify an employee for leave, being subject to the order must be the reason the employee is unable to perform work (or telework).  In accordance with the recent federal court decision, employees who have a qualifying reason for leave may be eligible to take paid leave even if the employer has no available work for them.
9. The federal court had invalidated the so-called work-availability requirement that required an employer to have available work for an employee in order for that employee to be eligible for either expanded FMLA or paid sick leave. But, in its updated regulations, the DOL reaffirmed that leave may only be taken if the employee has work from which to take leave. Employees may end a voluntary leave of absence and use leave under the FFCRA for a qualifying reason.  If the employee is on a mandatory leave, they would not be eligible for benefits., because the mandatory leave of absence—and not a qualifying reason for leave—prevents the employee from being able to work (or telework). The DOL was not persuaded by the federal court’s analysis of the work availability requirement under the “but-for” causation standard, and did not deviate from its interpretation of this standard, noting that it interprets the FFCRA to require that an employee may take leave only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work.
10. Employees are not eligible for paid sick leave or expanded FMLA in the following instances, but may be eligible for unemployment insurance:
    • Employees who are no longer working due to a workplace closure that occurred prior to April 1, 2020.
    • The worksite closed after April 1, 2020, but before the employee could take leave, even if they have future leave planned.
    • Where the worksite closed while the employee was on leave, then the employee would not be entitled to any additional leave.
    • Employees who are no longer working due to a furlough or a permanent or temporary workplace closure that occurs on or after April 1, 2020.
    • Employees who are working reduced hours are not entitled to use paid sick leave or expanded FMLA for the hours that they are no longer scheduled to work.
11. The DOL guidance provides that employer approval is required to take intermittent leave under the FFCRA.  The recent federal court decision invalidated this provision requiring that an employer approve an employee’s intermittent leave; however, the DOL, in its updated regulations, reaffirmed that where FFCRA leave is permitted, employees must obtain their employer’s approval to take intermittent leave.  The DOL justified its position, in part, by noting that because Congress granted the DOL broad regulatory authority to effectuate the purposes of both types of leave, it relied on certain aspects of the FMLA in its interpretation.
12. An employer and employee can agree that the employee works or teleworks his or her normal amount of hours but outside of the employer’s regular business hours, for example, late at night or early in the morning.  The DOL encourages flexibility and voluntary arrangements, particularly related to telework and intermittent leave. However, if an employee is still unable to telework due to a qualifying reason, then the employee is entitled to leave.
13. In addition to tax credits for leave benefits provided under the Act, employers are also entitled to dollar for dollar reimbursement through a tax credit for amounts paid or incurred to maintain health insurance coverage.  Employers may pay employees more than the FFCRA requirements, but cannot claim, and will not receive the tax credits for the excess amount paid to employees.
14. For employees taking paid sick leave, employers should continue to request and retain documentation containing certain information, including the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, and the date(s) for which leave is requested.  Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who advised the employee to self-quarantine.  Retention of this documentation is important if the employer plans to claim tax credit under the FFCRA, and the employer should request the written documentation as specified in applicable IRS forms, instructions, and information, available here and here.
    • While the recent federal court decision endorsed the rules documentation collection requirements, it did invalidate the requirement that employees needed to submit documentation before taking paid sick leave.  The new rule now states that employees must provide documentation to support their leave “as soon as practicable”, which means this could occur at times after starting the leave.  
    • If an employee requests paid sick leave pending a medical diagnosis, the employer may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment.  The employer may not, however, require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider.  The minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19.
15. For employees seeking expanded FMLA leave, employers should request and retain documentation as if dealing with a conventional FMLA request.  All existing certification requirements under the FMLA remain in effect if an employee is taking leave for one of the existing qualifying reasons under the FMLA.  
    • For example, if an employee is taking leave beyond the two weeks of emergency paid sick leave because his or her medical condition for COVID-19-related reasons rises to the level of a serious health condition, the employee must continue to provide medical certifications under the FMLA if required by the employer. 
    • Retention of this documentation is also important if the employer plans to claim tax credit under the FFCRA, and the employer should request the written documentation as specified in applicable IRS forms, instructions, and information.
    • For employees using leave to care for a child whose school or place of care is closed, or child care provider is unavailable, the employee must provide: (1) the name of their child; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a statement that no other suitable person is available to care for their child.
    • The DOL clarified in its latest guidance that advance notice of expanded FMLA leave is not prohibited and is typically required if the need for leave is foreseeable. If the need for leave is not foreseeable, the employee may begin to take leave but must give notice to the employer as soon as practicable.
16. The guidance contemplates a scenario where an employee with children who has been teleworking successfully for some time now requests leave because they need to care for their child or children.  In that instance, the guidance confirms that an employer may require a written or oral statement of the qualifying reason (in addition to FMLA documentation) for an employee. The employer may ask the employee to describe, in his or her statement, the changed circumstances that now require the employee to take leave. However, the guidance recommends that employers exercise caution when asking such questions to avoid a situation where the employer’s decision to deny leave on the basis of the employee’s detailed statement turns out to be a prohibited act.  For example, an employee may request leave to take care of their child or children so that the employee’s spouse, who is not eligible for paid leave, can work or telework.  This would be a legitimate reason for the employee’s leave request and would not be a basis to deny the request.
17. Employers should post the DOL model notice on an electronic portal or circulate the notice via email so that it is accessible to employees working remotely, and post a copy of the notice in a breakroom for those employees who have returned to work. 

Employers should ensure that their policies and practices are in line with the DOL’s revisions and clarifications, as noted above.  But as this may not be the last word on these issues (even though the law expires in less than four months), and therefore, employers should also be prepared to further adjust their policies and practices to comply with any future rulings and/or subsequent regulations addressing the FFCRA.  We will continue to update this post as the DOL releases additional guidance.