COVID-19: DOL Publishes “First Round” of FFCRA Guidance

U.S. Department of Labor Publishes “First Round” of Guidance regarding Leave under the FFCRA but Questions Remain; establishes April 1, 2020 Effective Date

By: Kyle McClain

March 24, 2020

[Updated March 27, 2020 to update links after the DOL published corrected guidance. The updated links lead to archived versions of the since-updated documents as they originally appeared.]

Late today, the United States Department of Labor (“DOL”) released what it labeled its “first round of published guidance” regarding the Families First Coronavirus Response Act (“FFCRA”) signed into law on March 18, 2020. The guidance is largely limited to the employee leave provisions of the FFCRA, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Read our post about the FFCRA, and the EPSLA and EFMLEA in particular, for a review of the requirements of the FFCRA as enacted.

The DOL guidance is provided in the form of three webpages or documents: a Fact Sheet for Employees [as originally published], a Fact Sheet for Employers [as originally published], and a Questions and Answers webpage / document [as originally published]. Before reaching those individual documents, the news release itself is notable for announcing that the FFCRA will take effect on April 1, 2020, not April 2, 2020 as most commenters had opined based on identical language in both the EPSLA and EFMLEA that they “shall take effect not later than 15 days  after the date of enactment.”

The Fact Sheets are as advertised—broad reference guides providing a general overview of the leave available under the EPSLA and EFMLEA. They each specify that employees are eligible for, and employers must provide:

    • Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
    • Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
    • [For employees who have been employed for at least 30 calendar days] Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Of particular interest is the DOL’s use of the bolded term “expanded family and medical leave” in regard to the paid leave provided under both the EPSLA and the EFMLEA. While neither the EPSLA nor the EFMLEA uses the term “expanded family and medical leave,” it certainly sounds like a reference only to the leave provided under the EFMLEA (Emergency Family and Medical Leave Expansion Act). The initial 80 hours of paid leave referenced above, however, is provided only under the EPSLA, not the EFMLEA (which explicitly states that the first 10 days of leave provided thereunder are unpaid).

While it seems the DOL has attempted to interpret the EPSLA and the EFMLEA in a manner consistent with each other by using a single term to refer to the paid leave provided under each act, identical sections in each Fact Sheet captioned “Qualifying Reasons for Leave” do not help to avoid any confusion in providing the following:

Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2. has been advised by a health care provider to self-quarantine related to COVID-19;

3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Although nothing in that portion of the guidance is incorrect, it is misleading. While the initial six reasons listed are indeed reasons an employee qualifies for leave under the FFCRA, they are only provided under the EPSLA, a part of the FFCRA, but not the EFMLEA. The only purpose added to the existing federal Family and Medical Leave Act (“FMLA”) for leave under the EFMLEA is reason 5 (roughly—the actual language used in each act is nearly identical, but not quite). It appears the DOL attempted to communicate that distinction by including the last sentence of the above passage. However, by again stating that it is provided under the FFCRA as a whole—which is still technically true—the statement is identical to reason 5 above and thereby redundant. If the DOL had instead stated that such reason is the sole reason for leave specified under the EFMLEA, the statement would be true, not redundant, and not misleading.

The rest of the Fact Sheets each provide information regarding the available duration of leave for the various reasons discussed above, and the calculation of pay for leave for those reasons, including the daily and aggregate maximums. The Employer Fact Sheet further discusses available tax credits for payment of leave, notice requirements, prohibitions, and penalties and enforcement. Importantly, the Penalties and Enforcement section states that the DOL “will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.” The Fact Sheets also each note, in footnotes, that DOL FFCRA regulations are “expected April 2020.”

The Questions and Answers document is presented in a Frequently Asked Questions (“FAQs”) format. Many of the questions and answers reiterate the information provided in the Fact Sheets, but some of the more helpful questions and answers address:

    • How employers calculate the 500-employee coverage threshold;
    • how to calculate a part-time employee’s average number of hours worked;
    • how to calculate an employee’s regular rate of pay; and
    • the total amount of paid sick time available under the EPSLA.

The document also attempts to address the issue encountered above—how do the EPSLA and the EFMLEA interact? One of the Questions is devoted to this question, but like the Fact Sheets, it may very well create more questions than it answers. Question 10 asks: If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact? The answer provided reads:

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

The above answer states that the EPSLA “provides for an initial two weeks of paid leave” and that it “thus covers the first ten workdays of expanded family and medical leave.” Again, we see the term “expanded family and medical leave,” albeit now used to refer to at least a partial period of unpaid leave unlike in the Fact Sheets. Such guidance is at least partially consistent with the Fact Sheets’ statements that employees are entitled to “[t]wo weeks (up to 80 hours)” of leave. The latter hours reference, however, comes from the language of the EPSLA itself, which speaks in terms of hours, not weeks, providing: “(A) For full-time employees, 80 hours. (B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Thus, the hours (as opposed to weeks) provided under the EPSLA are tied to whether an employee is employed “full-time” or “part-time.”

Neither the EPSLA, nor the EFMLEA (or the FMLA for that matter), however, defines “full-time” or “part-time.” The DOL seems to assume that a “full-time employee” is an employee regularly scheduled to work 40 hours per week. In reality, however, many different laws, and many different employers, define “full-time” and “part-time” employment status differently. Take, for example, an employer who defines “full-time employees” as those employees regularly scheduled to work 35 hours or more per week—not an uncommon circumstance. If a “full-time employee” regularly scheduled to work 7 hours per day, 5 days per week, for a total of 35 hours per week, takes leave to care for the employee’s child whose school is closed indefinitely for the foreseeable future, should that employee be paid according to that employee’s regular two-week work schedule—70 hours—as the guidance states, or for 80 hours—more than two weeks—as the language of the EPSLA itself states? If the latter, and payment under the EPSLA for 80 hours extends beyond two weeks (i.e., ten working days), is the employee now also entitled to the paid leave provided under the EFMLEA while still being paid under the EPSLA (i.e., double payment)?

The FMLA, and the EFMLEA by extension, avoids the above circumstance by providing its unpaid leave entitlement in increments of weeks, which are based on an employee’s regular work schedule (or average hours worked, as may apply based on the circumstances), and thereby avoiding the need to define “full-time” or “part-time.” But when Congress provided “paid sick time” (the actual term used throughout the EPSLA) in increments of hours, it threw a wrench into the established leave procedures of the FMLA. The DOL’s attempt to interpret the two leave provisions consistent with each other is admirable, but, as illustrated above, still needs improvement. Hopefully future guidance and the forthcoming regulations will address and resolve this inconsistency, either by defining “full-time” and “part-time,” or in another manner. Stay tuned for future updates.

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.

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