COVID-19: DOL Releases MORE FFCRA Guidance

United States Department of Labor releases MORE FFCRA guidance following Wednesday’s release of FFCRA regulations

By: Kyle McClain

April 3, 2020

Today, the United States Department of Labor (“DOL”) issued more guidance regarding the Families First Coronavirus Response Act (“FFCRA”). This is the DOL’s fourth “round” of FFCRA guidance and the first since issuing its temporary rule and FFCRA regulations on Wednesday (April 1, 2020). Please see my post on the regulations from earlier this week for more information about the temporary rule and the regulations. The temporary rule and the regulations can be downloaded directly here.

The DOL’s news release regarding the latest additional guidance announces the publication of a webinar about the FFCRA as well as updates to the DOL’s Questions and Answers guidance on the FFCRA. Please refer to my previous posts discussing the DOL’s first, second, and third releases of FFCRA guidance for more information about those releases, as well as my post about the DOL’s employee notice posters. 

The DOL’s FFCRA webinar can be downloaded and viewed here. Please note that the link requires you to download Adobe Connect software (if you do not already have it) in order to view the webinar. The webinar is 31 minutes long and consists of a PowerPoint slide presentation with an audio review of each slide and the relevant portions of the law. All in all, the webinar provides a general overview of the FFCRA and reflects various interpretations of the FFCRA made by the DOL to-date either via the regulations or its published guidance. Be warned that the audio quality is not optimal.

The updated Questions and Answers guidance can be viewed here. As I discussed in a previous post, the Q&A document/webpage should be considered “living guidance” as each iteration of updates has not only added additional sets of Questions and Answers to the end of the previous list, but in some cases, revised the previously provided answers. There have been a few times I was sure the guidance had previously advised something other than it presently stated, which I later confirmed by viewing previously saved, printed, or cached versions of the guidance.

The revised Q&A guidance adds 19 more questions and answers (60-79) to the 79 total sets of questions and answers. As I have said before, for employers, there is no substitute for reading the complete document. With that said, the new questions and answers largely reflect parts of the regulations that had not previously been addressed by the DOL’s guidance prior to the release of the temporary rule and regulations. For example, Question 60 asks: “How do I know if I can receive paid sick leave for a Federal, State, or local quarantine or isolation order related to COVID-19?” The answer reflects the definition of “subject to a quarantine or isolation order” now contained in Section 826.10(a) of the new regulations (although it does not quote it word-for-word), as well as additional regulatory language now provided under Section 826.20(a)(2) which further details conditions to be met in order to qualify for leave for that reason. Q&A 67 and 68 similarly reflect the definitions of “place of care” and “child care provider,” respectively, as set forth in the regulations under Section 826.10(a).

While several of the Q&As describe what circumstances will meet certain requirements of the FFCRA like Q&A 60 discussed above, other Q&As utilize the method of describing circumstances that will not meet FFCRA requirements, and detail why not. For example, Question 62 asks: “I am an employee. I become ill with COVID-19 symptoms, decide to quarantine myself for two weeks, and then return to work. I do not seek a medical diagnosis or the advice of a health care provider. Can I get paid for those two weeks under the FFCRA?” The answer provides that such an employee will generally not qualify for payment under the FFCRA because an employee “may not take paid sick leave under the FFCRA if [the employee] unilaterally decide[s] to self-quarantine for an illness without medical advice, even if [the employee has] COVID-19 symptoms.” That answer reflects the regulatory language provided in Section 826.20(a)(3) of the regulations.

The updated Q&A guidance also provides some new information. For example, Q&A 70 states that a child’s school or place of care that has moved to online instruction or “distance learning” is still considered “closed” for purposes of the FFCRA and eligibility for leave related to that reason thereunder. Meanwhile, Q&A 73 provides information–for the first time–on the meaning of the sixth qualifying reason for paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”), which is when an Employee “has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.” The guidance provides that “[t]he U.S. Department of Health and Human Services (HHS) has not yet identified any ‘substantially similar condition’ that would allow an employee to take paid sick leave. If HHS does identify any such condition, the Department of Labor will issue guidance explaining when you may take paid sick leave on the basis of a ‘substantially similar condition.'” The webinar also includes this information which is much-appreciated clarification regarding that otherwise ambiguous reason for leave.

The last two Q&As, Q&A 78 and 79, clarify the meaning of the DOL’s 30-day “non-enforcement period” or “limited stay of enforcement” regarding the FFCRA as it has interchangeably been described. The guidance clarifies that while from April 1 through April 17, 2020 covered employers are required to comply with the FFCRA, the DOL will not bring enforcement actions as long as an employer has made “reasonable, good faith efforts” to comply with the Act, although the DOL reserves its right to exercise its enforcement authority “[i]f the employer violates the Act willfully, fails to provide a written commitment to future compliance with the Act, or fails to remedy a violation upon notification by the Department.”

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.