Department of Labor Releases New FAQ on FFCRA
The Department of Labor has released another FAQ to address the many questions employees and employers alike have had regarding the Families First Coronavirus Response Act. (FFCRA) The responses should help clear up a large amount of confusion surrounding the young law:
1. The FFCRA Applies to Employers with Less Than 500 Employees. Which Employees are Included in this Count?
- The “employees” that make up the 500-point threshold include full-time employees, part-time employees, employees on leave, day laborers supplied by a temporary agency, and jointly-employed workers. Independent contractors, notably, are not included in this count.
2. Has FMLA Been Altered in its Entirety?
- NO. FMLA has not been permanently altered to match the provisions of the expansion (paid leave, 30 day eligibility). Standard FMLA is still the same as before, but there is a new add-on covering employees who must look after children due to school/daycare closure that has enhanced provisions.
3. May an Employer Require Documentation Under Expanded FMLA?
- YES. The employer may request reasonable documentation sufficient to prove that the leave is being used for an appropriate purpose (for example, an official notice of school closure).
4. May an Employee Use FFCRA Leave Intermittently?
- An employee may use intermittent FFCRA leave while teleworking, but may only use intermittent FFCRA leave at a worksite if both the employer and employee agree to it.
5. If an Employer Closes a Worksite While an Employee is Out on Leave, What Are the Employer’s Responsibilities?
- The employer must pay employee for any sick time already taken, but need not pay for any time the employee would have been out on FFCRA after the worksite closure.
6. Is an Employee Entitled to FFCRA Leave While on Furlough?
7. May an Employee Combine FFCRA Leave with Company-Provided PTO to Receive 100% Salary During Leave?
- YES, but only if the employer allows Company leave to supplement FFCRA leave.
8. Does FFCRA Leave Have Job Protection?
9. Does the FFCRA FMLA Expansion Provide More FMLA Leave For Employees?
NO. If an employee has exhausted all FMLA prior to April 1, they are not entitled to an extra 10 weeks under the FFCRA. The FFCRA does not provide extra FMLA time, only an extra reason for its use.
10. Must An Employer Continue Health Insurance While on FFCRA Leave?
- YES. An employer must maintain an employee’s health insurance while that employee is out on either FFCRA-provided leave.
11. If I am on FFCRA Leave and Also on a Health Insurance Waiting Period, Does That Waiting Period Run During the Leave?
- YES. Any waiting periods imposed by a group health plan will continue to run during FFCRA leave, and the employee will become eligible on the same day as if he/she were working.
12. Under the FFCRA, an Employee Will Receive Time Off If the Employee is Advised by a Health Provider to Quarantine. What is Considered a “Health Provider” Under the Law?
- A “health provider” means a doctor, nurse practitioner, or any other health care provider permitted to issue an FMLA certification.
13. Paid Employee Leave Under the FFCRA References “Regular Rate of Pay.” How Does an Employer Determine Regular Rate of Pay?
- “Regular rate of pay” for an employee, especially for one whose normal wages fluctuate weekly/monthly, is based on 6 months prior to the enactment of this law.
Our priority is to effectively communicate these COVID-19 updates in a timely manner that will help all of us get through this together. For more COVID-19 (Coronavirus) resources, tips, and fact sheets please visit our FNA COVID-19 Resource Center.
For more Healthcare Reform/Compliance News, please visit our Insights Page. As always, for all of your compliance concerns please reach out to our Compliance Team:
Heather Reynolds, ESQ