DOL Revised FFCRA Regulations Related to Employee Leave

Oct 2, 2020 | COVID-19, Domestic Workers' Rights, Labor Laws

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The U.S. Department of Labor has amended some provisions of the FFCRA in response to a federal court decision that invalidated part of the law’s original regulations. Here is what has changed.

The U.S. Department of Labor (DOL) has amended some provisions of the Families First Coronavirus Act (FFCRA). The revised FFCRA regulations are in response to a federal court decision that invalidated part of the FFCRA’s original regulations.

The revisions:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable (rather than always prior to taking leave).
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers, by clarifying that advance notice is not prohibited and is typically required if the need for leave is foreseeable, such as when an employee has advance notice of a school closing.

With the court ruling in August, it was not clear if it applied nationwide or only in the Southern District of New York, where the court is located. However, the DOL considers the invalidated provisions of the FFCRA paid leave regulations as vacated nationwide, not just as to the parties in the court case.

FFCRA paid leave benefits are available to household employees like nannies, housekeepers, and senior caregivers.

Here is additional information on three key provisions in the FFCRA:

Documenting the need for leave

When requesting paid sick leave or expanded family and medical leave, an employee must provide their employer either orally or in writing the following information as soon as practicable:

  • Their name;
  • The date(s) for which they request leave;
  • The reason for leave; and
  • A statement that they are unable to work because of the above reason.

If they request leave because they are subject to a quarantine or isolation order or to care for an individual subject to such an order, they should additionally provide the name of the government entity that issued the order. If they request leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, they should additionally provide the name of the health care provider who gave advice.

If they request leave to care for their child whose school or place of care is closed, or child care provider is unavailable, they must also provide:

  • The name of your child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the child.

In addition to the above information, they must also provide to their employer written documentation in support of their paid sick leave as specified in applicable IRS forms, instructions, and information.

Intermittent leave

Paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because an 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 due to concerns related to COVID-19;
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Once an employee begins taking paid sick leave for one or more of these qualifying reasons, they must continue to take paid sick leave each day until they either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if an employee is sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep them from spreading the virus to others.

If an employee no longer has a qualifying reason for taking paid sick leave before they exhaust their paid sick leave, they may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if an employee and their employer agree, the employee may take paid sick leave intermittently if they are taking paid sick leave to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if a child’s school or place of care is closed, or child care provider is unavailable, for an entire week due to COVID-19 related reasons and the employer and employee agree, the employee may take expanded family and medical leave intermittently on Monday, Wednesday, and Friday, but work Tuesday and Thursday, while another family member watches the child.

If a child’s school, place of care, or child care provider were closed or unavailable on only Monday, Wednesday, and Friday, as opposed to the entire week, then the employee would not need to take intermittent leave if working on the schedule in the example above. This is because each day of closure or unavailability is a separate reason for leave, and thus they would not need to take leave for a single reason intermittently. As such, they would not need their employer’s permission to take leave on just the days of closure or unavailability. However, they would still need to provide their employer with notice and documentation as soon as practicable.

Employers and employees are encouraged to collaborate to achieve maximum flexibility. Therefore, if employers and employees can voluntarily agree to intermittent leave on less than a full workday for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons.

Leave for “hybrid” school scenarios and voluntary remote learning options

Employees are eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for their child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to the child on days that they cannot attend in person. An employee may take paid leave under the FFCRA on each of their child’s remote-learning days.

However, if the employee’s child’s school is giving the choice between in-person schooling or a remote learning program for the fall and the employee opted for the remote learning alternative, they are not eligible to take paid leave under the FFCRA. That’s because the child’s school is not “closed” due to COVID–19 related reasons; it is open for the child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If a child is home not because their school is closed, but because the employee has chosen for their child to remain home, the employee is not entitled to FFCRA paid leave. However, if, because of COVID-19, their child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, an employee may be eligible to take paid leave to care of their child.

Visit the DOL’s FFCRA Q&A web page

The revised FFCRA regulations became effective September 16, 2020. FFCRA paid leave requirements expire on December 31, 2020.

GTM can help

FFCRA not only provides benefits to employees but tax credits to families who provide paid leave to their household workers. Paid leave must be documented and included on the employee’s Form W-2 at the end of the year. Need help making sense of it all? Give us a call at (800) 929-9213 and get a complimentary, no-obligation consultation with a household employment expert. We can review the FFCRA requirements and other tax, wage, and labor obligations for household employers. And we can show how GTM Payroll Services can make it easy and hassle-free!

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