League offers clarity on emergency employee leave rules under FFCRA
Wednesday, April 8, 2020
To help credit unions interpret and apply extensive information from the U. S. Department of Labor on the Families First Coronavirus Response Act (FFCRA), the League offers the following key clarifications on the related Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).
Further League insight on the FFCRA is available in FFCRA Frequently Asked Questions for Credit Unions.
Small Employer Exemption
Small, private employers with less than 50 employees may be exempt from the requirements of the FFCRA. If an employer believes it qualifies for the exemption, the employer should document all circumstances and facts to justify this denial and retain these records for at least four years.
FFCRA leave may be denied if the leave would jeopardize the viability of the business. The DOL has providence guidance that the employer may deny leave if an authorized officer of the business has determined:
- Granting leave would result in the employer’s financial obligations and expenses exceeding their available business revenues and cause the business to cease operating at a minimal capacity;
- Absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capacity of the business because of the employee’s or employees’ specialized skills, knowledge of business, or responsibilities; or
- The small employer cannot find enough 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 leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Employers must still post the mandatory FFCRA posting, whether they choose to exempt one or more employees.
According to the DOL, FFCRA intermittent leave may only be used if both the employer and employee are in agreement. While a written agreement is not required – the DOL simply indicates that the agreement must be a “clear and mutual understanding” – it is strongly recommended to outline the terms of the agreement to the use of intermittent leave in writing. If unable to obtain signatures, the document should be sent to the employee via email.
Employers must maintain health insurance coverage while employee is on FFCRA paid sick leave or paid Emergency Family Medical Leave. The employee remains responsible for any portion of the insurance for which they normally pay through payroll deduction.
Documentation and Record Keeping
Employee must provide a signed statement or form which contains the employee’s name, dates requested, the COVID-19 qualifying reason for leave, and a statement that the employee is unable to telework or work because of the COVID-19 reason. View the sample form here or access it from the League’s COVID-19 Resource Center.
The employee must also provide additional documentation supporting the reason for leave, as follows:
- Name of government entity or health care provider that issued the quarantine order (DOL does not require a note from the provider)
- For leave to care for a child due to closure of school or daycare, documentation must include the name of the child being cared for, the name of the school or child care provider and the statement that it is closed due to COVID-19, and a statement that no other suitable person is available to care of the child during the period of leave requested.
- For leave to care for an individual, the following documentation is required:
- Name of government entity or isolation order to which the employee is subject; or
- Name of health care provider advising of quarantine due to COVID-19 reasons
Employers must retain all documentation of leave requested, granted, or denied for four years.
- Emergency Paid Sick Leave (EPSL) may be taken if the employee is seeking or has obtained a medical diagnosis. EPSL may be used for the time the employee needs to seek a medical diagnosis. An employee may not take paid sick leave under the FFCRA if he/she unilaterally decides to self-quarantine for an illness without medical advice, even if he/she exhibits COVID-19 symptoms.
- An employee who requests EFMLEA to care for another individual must have a “genuine need to care for the individual,” and may not be taken for someone with whom the employee has no personal relationship. Examples of eligible leave requests would be to care for a family member, a roommate, or a domestic partner.
- For leave requested based on a school closing or child care provider unavailability, the employee must provide written representation that no other person will be providing care for the child during the period in which the employee is receiving family medical leave.
- With respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement must be provided that describes the special circumstances that exist which require the employee to provide such care.
For additional information, please see the Department of Labor website: dol.gov/agencies/whd/pandemic/ffcra-questions.