Disclaimer: The interpretation of the Families First Coronavirus Response Act is continuing to develop and change as new challenges emerge. This is a summary of only a portion of the guidelines issued by the Department of Labor on March 24, 2020. Every situation is different. Please consult with counsel to determine how these guidelines may impact you.
The Department of Labor released guidance on March 24, 2020, on interpreting the recently enacted Families First Coronavirus Response Act (FFCRA). In its guidance, the Department of Labor stated that the paid leave provisions of the FFCRA are effective beginning April 1, 2020. This differs from the previous estimate of an effective date of April 2, 2020.
The FFCRA covers employers with fewer than 500 employees, however, health care providers and emergency responders are exempt. Additionally, businesses with fewer than 50 employees where paid sick leave would jeopardize the viability of the business are also exempt.
If an employee needs to take paid leave under the FFCRA, the employee needs to provide as much notice as is practicable. After the first workday of paid sick leave, the employer may require employees to follow reasonable notice procedures to continue to receive paid sick leave.
Employers are required to post notice in a conspicuous place of the availability of paid sick leave. The Department of Labor has provided a poster that contains the necessary notice. A copy of the poster is included with this memo and can be found at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Paid leave is for employees who cannot work or telework for any of the reasons specified below. If an employee is able to telework, the implication is that they do not qualify for the paid sick leave. An employee qualifies for paid sick leave if the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
The Department of Labor clarified that only reason #5 may be used to take paid leave under the FMLA expansion. Additionally, an employee is not entitled to any unused leave under the FFCRA upon termination, resignation, retirement, or other separation from employment. The Act sunsets on December 31, 2020, and any leave under this Act does not carryover from one year to the next.
The FFCRA contains a provision prohibiting employers from discharging, disciplining, or discriminating against an employee for taking paid leave under this Act or for filing a complaint related to this Act.
Lisa K. Cagle
Lisa K. Cagle is an associate attorney with Gunderson, Palmer, Nelson & Ashmore, LLP in Rapid City, South Dakota. Lisa focuses her practice primarily on business and estate planning, real estate law, and employment law. Prior to practicing law, she worked as a teacher for eight years.