When the Families First Coronavirus Response Act (FFCRA) was initially released on March 18, 2020 and required employers with fewer than 500 employees to provide paid sick leave and expanded the Family and Medical Leave Act (FMLA), most of us probably thought—and hoped—the FFCRA was a temporary measure to get employers through the next couple of months. Here we are in October, still dealing with the same issues and ready for a return of more normal times.
There have been some recent revisions to the FFCRA that employers and plan sponsors should be addressing in their paid leave procedures. These may affect some employers more than others, with some of the changes more critical than others as well.
What Has Happened Recently?
The Department of Labor (DOL) published and regularly updates a dedicated questions & answers (Q&A) web page that currently stands at 103 Q&As. The most recent additions were published on September 11, 2020, when the DOL released a temporary rule containing revisions and clarifications after a decision on August 3, 2020 by the U.S. District Court for the Southern District of New York that found portions of the regulations invalid. The temporary rule went into effect on September 16, 2020 and, as a result, plan sponsors should review their procedures and ensure that they are as up to date as possible.
The court ruling impacted four FFCRA leave provisions, some directly involved with employers bringing employees back to offices just as schools were reopening:
- The definition of health care providers who may be denied leave
- The requirement that an employer have work available for an employee taking leave
- The requirement that employers consent to intermittent leave
- The requirement that employees provide documentation for leave before taking leave.
In addition, on September 18, 2020 the DOL issued an information collection notice seeking comments from plan sponsors on the administration of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).
Definition of Health Care Providers
The revision of the term “health care provider” is much narrower than the original, which the court said left too many employees exempt from FFCRA rules. The new rule defines a health care provider as:
- An employee who meets the definition of health care provider under the FMLA
- Those employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to provide patient care and if not provided would adversely affect patients.
If an employer provides health care services and previously excluded employees from being able to take FFCRA leave, the employer should conduct an assessment to determine whether each employee is truly a health care provider under the revised definition. Employees who work for an employer that provides health care services may not be directly involved in providing those services and would therefore not be eligible for FFCRA leave.
Work Availability Standard
The new rule clarifies that to be eligible to take any FFCRA paid sick leave or FMLA leave, a person must be:
- an active employee, and
- cannot be furloughed or working reduced hours.
If an employer is letting employees who are furloughed or working very few hours take FFCRA leave for hours they would not usually be at work, they will have to stop this policy. In addition, the employee’s FFCRA qualifying event must be the only reason they cannot work. Generally, employers will not have to retroactively offer every furloughed employee FFCRA leave.
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In the original rule, FFCRA allowed employees to take leave on an intermittent basis as long as it did not pose a public health risk. This situation could be used, for example, when an employee needs to use intermittent leave to care for a child whose school or child-care facility had closed for COVID-19 reasons. The process required the employer to agree first to the intermittent leave, and then both parties had to plan prior to the leave to determine how it would be implemented.
Based on the revised ruling, employers must allow employees to take intermittent FFCRA on demand but encourages flexibility for employers and employees to collaborate and meet the needs of all involved.
The recordkeeping requirements for FFCRA leave includes both the employee’s notification of the requested leave and the documentation supporting the leave. The initial rule required employees to provide advance documentation of the leave, however, the revision allows for documentation “as soon as practicable.” An employer may deny an employee’s request for leave for failure to provide notice but should first give the employee an opportunity to provide documentation to substantiate the leave.
The documentation should include:
- employer’s name
- date(s) of the requested leave
- qualifying reason for the leave
- written statement that the employee is unable to work or telework.
Oral statements from the employee are allowed, however, the employer should still create written documentation. In addition, the employer must retain the documentation related to the paid leave request for four years.
Learn More about the FFCRA
Read more in the previous International Foundation Word on Benefits posts on the FFCRA:
- Law Enacted to Enable Free Coronavirus Testing and Expand Paid Leave: Families First Coronavirus Response Act, March 19, 2020
- DOL Issues Families First Coronavirus Response Act (FFCRA): Questions and Answers, March 25, 2020
- DOL Issues Additional Guidance on FFCRA, March 31, 2020.
FFCRA Updates, Ballard Spahr, September 14, 2020
Anne Newhouse, CEBS
Information/Research Specialist at the International Foundation of Employee Benefit Plans
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