As the COVID-19 pandemic continues to drag on, employers are still grappling with the proper application of and compliance with the Families First Coronavirus Response Act (“FFCRA”), which is currently in effect until December 31, 2020.  The Department of Labor has issued ongoing guidance in an effort to assist employers and address legal challenges to its interpretation of the FFCRA, including a ruling by a New York federal court that struck down several key provisions of the Act.  The most recent revised DOL guidance, which went into effect on September 16, 2020, contains the following significant reaffirmations and revisions.

  • Employees may only take Emergency Paid Sick Leave (“EPSL”) and/or Expanded Family and Medical Leave (“EFML”) if they have work that is actually available to them but are unable to perform it because of COVID-19-related reasons.
  • In general, employees still must obtain employer approval to take EPSL and EFML on an intermittent basis.  However, the employer’s approval is NOT required when an employee takes EFML on an irregular basis in full-day increments to care for a child whose school is operating on a hybrid schedule (alternating between in-person and virtual learning).
  • The definition of “health care providers,” who may be excluded by employers from eligibility for leave under the FFCRA, has been narrowed.  The revised definition includes employees who meet with the definition of health care provider under the FMLA, such as medical doctors, clinical psychologists, nurse practitioners, physician assistants and clinical social workers, as well as employees who provide diagnostic services, preventative services, treatment services or other services necessary to providing patient care.  The revised definition specifically excludes employees who work in IT, human resources, records, billing and building maintenance.
  • Employees should provide documentation regarding the need for leave under the FFCRA “as soon as practicable,” which will typically be when the employee provides notice of the basis for the leave.

In addition to this most recent guidance, the DOL also issued other guidance and helpful questions and answers in the last several months, including the following highlights.

  • Employees may not take EFML if the school the employee’s child attends provides a choice between in-person and virtual learning and the employee elects for the child to attend remotely.
  • Employers may require an employee who it knows has had close contact with a person infected with COVID to work remotely or take leave until the employee has tested negative for COVID.  Employers may NOT require that an employee present a negative test simply because the employee took leave under the FFCRA.
  • Employees are limited to 80 hours of EPSL and 12 weeks of EFML.  If an employee took the maximum amount of leave prior to being furloughed or temporarily laid off, then the employee is not entitled to additional leave after the employee returns to work.  The time spent not working while furloughed or temporarily laid off does not count as leave.
  • Employers may not extend the time that an employee is furloughed or temporarily laid off because the employer is aware that the employee will need to take leave under the FFCRA upon returning to work.
  • Employers that permit non-exempt employees to work flexible hours while working remotely are required to compensate employees for all hours actually worked, but employers are not required to include as hours actually worked all time between the performance of the first and last activities of the workday.
  • Employers are not required to pay employees hazard pay during the COVID-19 pandemic under
    the FLSA, but they may be required to do so under state or local law.

As the last few months have shown us, the laws and related guidance surrounding the COVID-19 pandemic are expanding and changing on a regular basis.  The Burch Porter & Johnson employment law team continues to closely track these developments and is here to help.

If you'd like more information on this topic, or have questions, please contact:

Jennifer S. Hagerman

jhagerman [at] bpjlaw [dot] com

901.524.5162