March 30, 2020

Federal Legislation

Guidance on Paid Leave under the Families First Coronavirus Response Act (FFCRA)

The Department of Labor (DOL) released additional guidance around the emergency paid sick leave and expanded FMLA benefits required of employers with fewer than 500 employees under FFCRA effective April 1, 2020. The newest guidance falls under #15-59 of the DOL’s posted Q&A (MMA ADL reported on the release of #1-14 on March 25) and includes the following:

• Employees are required to provide their employers with documentation supporting the need for paid sick and/or expanded FMLA leave.  Employers who intend to claim a tax credit under FFCRA should retain this documentation. (#15-16)
• Inability to work and intermittent leave: (#17-22)
  • • An employee will be considered unable to work if one of the COVID-19 qualifying reasons outlined under FFCRA prevents him or her from being able to perform work under normal circumstances at the employee’s regular worksite or via telework, and for the employee’s normal number of hours.
    •  Employees who are teleworking: An employer and an employee may agree on intermittent FFCRA paid sick or expanded FMLA leave if the employee is unable to telework his or her normal number of hours due to a COVID-19 qualifying reason. The increment is as agreed upon by the employer and the employee.
    • Employees who are not teleworking (i.e., working at usual worksite):
      • Paid sick leave must be taken in full day increments. Note, however, that once FFCRA paid sick leave for official quarantine order, employee’s own illness, or care for an ill family member begins, leave must continue until time is exhausted or there is no longer a qualifying reason; days used to stay home with a child whose school or place of care has closed need not be consecutive.
      • An employee who no longer has a qualifying reason for taking FFCRA paid sick leave before such leave is exhausted may take any remaining leave at a later time if another qualifying reason occurs, up until December 31, 2020.
      • Expanded FMLA may be taken intermittently as agreed upon between the employee and his or her employer.
• Employees subject to reduced hours, worksite closure or furlough are not entitled to FFCRA paid sick leave or expanded FMLA, but may be eligible for unemployment benefits. If an employer later reopens, employees would be eligible for FFCRA paid sick leave or paid FMLA as warranted. (#23-28)
• FFCRA paid sick leave and expanded FMLA benefits may not be received at the same time as unemployment benefits. Employees are encouraged to contact state unemployment agencies with specific questions regarding eligibility. (#29)
• Employers must continue health benefits for employees on FFCRA paid sick or expanded FMLA leave; employees may still be required to remit contributions. (#30)
  • • Health plan requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if an employee continued to work, including that the days an employee is on FFCRA paid sick leave count towards completion of the waiting period. (#51)
• Other leave entitlement:
  • • Leave taken under FFCRA paid sick leave and/or expanded FMLA cannot be taken simultaneously with a company’s leave policy.  Employers may allow, but not require, employees to supplement the amount an employee receives from FFCRA paid sick leave or expanded FMLA, up to normal earnings, with an existing company leave policy. (#31-34)
    • FFCRA paid sick leave is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement, or an employer’s existing company policy. (#46)
• Employers that are part of a multiemployer collective bargaining agreement may satisfy FFCRA paid sick leave and expanded FMLA obligations by making contributions to a multiemployer fund, plan, or other program in accordance with existing collective bargaining obligations. (#35-37)
• Eligible employees are those as defined under the Fair Labor Standards Act (FLSA).  Eligible employees are entitled to FFCRA paid sick leave regardless of length of employment, however only those who have been employed for 30 days or more at the time of leave are eligible for expanded FMLA. (#38)
  • • For purposes of FFCRA paid sick leave, a full-time employee is one who is normally scheduled to work 40 hours or more per week; there is no distinction between full-time and part-time employees under expanded FMLA. (#48-49; see also #5-6)
    • Public sector employees are generally eligible for FFCRA paid sick and expanded FMLA leave; some exceptions for federal employees exist. (#52-54)
    • Employers may exclude health care providers and emergency responders on a case-by-case basis (#38, #56-57)
• Certain small businesses may be exempt from providing paid leave for the purpose of caring for a child whose school or place of care has closed if the leave would jeopardize the viability of the company. (#4, #58-59)
• Under FFCRA, the definition of a child will include an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. (#40)
• Employees returning from FFCRA paid sick leave or expanded FMLA leave are entitled to be restored to the same or equivalent position (there are exceptions for “key” employees and for smaller employers).  Leave taken under FFCRA does not protect employees from employment action that may have occurred regardless of leave, such as layoff. (#43)
• Leave taken under expanded FMLA is included in the 12-week entitlement of an otherwise-FMLA-eligible employee, not in addition to. (#44-45)
  • • Note: FFCRA paid sick leave is not a form of FMLA leave and therefore does not count toward the FMLA maximum entitlement of 12 workweeks in a 12-month period. However, if an employee takes paid sick leave concurrently with the first two weeks of expanded FMLA, which would otherwise be unpaid, then those two weeks do count towards the 12 workweeks.
• A “health care provider”, as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. (#55)

Additional Resources

The DOL has posted additional information on its COVID-19 and the American Workplace webpage, including:

• • The Employee Rights Notice, which must be displayed by April 1, 2020, in a conspicuous place accessible to all employees. Per the posted FAQ the notice may be distributed to all current employees working remotely via mail or email and/or posted on a website available to all employees.
  • FFCRA Fact Sheets for employees and employers
  • Q&A addressing COVID-19, FLSA and FMLA

With regard to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has posted a recorded webinar supplementing previously released information: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”)

On March 27, 2020, the President signed H.R.748, or The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”), into law.  The CARES Act does not make any adjustments to leave provided under the Families First Coronavirus Responses Act (FFCRA), but mainly cites changes to existing law text (see Sections 3601-3611). 

• • One such change is the addition of rehire verbiage with regard to the 30-day employee eligibility for expanded FMLA leave under FFCRA: “the term ‘employed for at least 30 calendar days’, used with respect to an employee and an employer described in [FFCRA FMLA eligibility], includes an employee who was laid off by that employer not earlier than March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer.”
  • Section 3606 addresses law text amendments with regard to FFCRA paid sick leave and expanded FMLA tax credits.

State Legislation

State Disability and/or Paid Family Leave Program Responses to COVID-19

Updates from our previous version are in bold type:

* CA EDD has clarified certification requirements for COVID-19-related SDI and PFL claims. Per the online FAQ, “This requirement can be met by a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to you. Telehealth and virtual appointments are acceptable for a physical examination, but medical certifications are still required.”

** These changes are permanent as a result of Senate Bill 2304 (P.L.2020, c.17), signed by the governor of New Jersey on March 25, 2020. The law also similarly amends the definition of “serious health condition” under the New Jersey Family Leave Act.

MMA ADL will continue to research and monitor developments.

More information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Washington Paid Family and Medical Leave (WA PFML)

On March 25, 2020, the governor of Washington signed HB 2614, which makes several clarifications on and amendments to the WA PFML law, including:

• Excludes “casual labor” from the definition of employment and, thus, from quarterly reporting and premium payments.  Casual labor is defined as work that is performed 12 or fewer times per calendar quarter, and on an inconsistent basis. Someone who performs casual labor cannot use those hours or wages toward their eligibility for WA PFML.
• Expands the definition of a covered family member to include a child’s spouse.
• Includes “Paid Time Off” and “Supplemental Benefit Payments” in the list of defined terms:*
  • • “Paid Time Off includes vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.”  Added text specifies that an eligible employee may receive paid time off while satisfying the waiting period.
    • “Supplemental Benefit Payments means payments made by an employer to an employee as salary continuation or as paid time off.  Such payments must be in addition to any paid family or medical benefits the employee is receiving.”
    • * Please see our February 24 Statutory Update for more information around Supplemental Benefit Payments  
• Waives the seven calendar day waiting period for leave taken due to qualifying exigency.
• Adds language around WA PFML benefits and child support obligations.
• Clarifies that an employer who has an approved Voluntary Plan for medical leave or family leave, but not both, must remit premium for the portion the Voluntary Plan does not cover.

The Employment Security Department (ESD) has posted an updated version of the Employer Toolkit on the WA PFML website.

Please contact your MMA ADL Account Team members for specific questions about these or other updates.

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