Carissa Davis

On April 1, 2020, the Department of Labor (“DOL”) announced temporary regulations for Expanded Family and Medical Leave (“Expanded FMLA”) and Emergency Paid Sick Leave provided under the Families First Coronavirus Response Act (“FFCRA”).  The situation remains incredibly fluid with new guidance issued daily, but the temporary regulations appear to clarify some FFCRA mandates.

The FFCRA requires covered employers to provide paid leave to eligible employees who are unable to work or telework due to specific COVID-19-related reasons, such as infection, quarantine, or the unavailability of child care. Sherman & Howard has previously issued a client advisory detailing these requirements.

Major clarifications are detailed below:

• When counting employees to determine coverage, employers should count all full- and part-time employees, employees on leave, day laborers from temporary placement agencies, and employees of integrated or joint employers. Employers should not count independent contractors, furloughed, or laid-off employees.
• Employers of health care providers or emergency responders may exempt all employees from coverage, including operating support staff.
• For all qualifying COVID-19-related circumstances, the employee may receive benefits under the FFCRA only if the employee is unable to work or telework despite the availability of work provided by the employer.
• An employee is unable to work due to childcare-related reasons if no suitable person is available to care for the employee’s son or daughter.
• A quarantine or isolation order includes shelter-in-place or stay-at-home orders issued by Federal, State, or local government authorities, rendering an employee unable to work.
• Expanded FMLA leave is considered part of the 12 weeks of traditional leave available under the FMLA.
• In some circumstances, employees may take intermittent FFCRA leave.
• When determining average hours worked, calculations should examine the employee’s schedule for the prior 6 months.
• Employers should document and retain documentation of business, leave, and tax decisions related to the FFCRA, including denied leave requests.
• Although employees are required to provide notice of intent to use FFCRA leave, employers may not mandate that employees provide advance notice.
• Every covered employer, including those claiming exemption, must post the FFCRA poster.

This blog provides a high level overview of the temporary regulations. Coverage, exemptions, employee eligibility, wages, and tax credits all present discrete and complex issues for employers. Importantly, the payment of wages and leave may affect retirement plans. Finally, the $2 trillion economic stimulus known as the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) details employer eligibility for government-provided loans, some of which may be forgiven upon the achievement of certain employment-related conditions. Sherman & Howard has issued some guidance on the CARES Act, but loan eligibility is complex and should be assessed individually. Contact a Sherman & Howard attorney with any COVID-19 concerns.