The Department of Labor has updated its Q&A page that we previously wrote about to answer many additional questions regarding the Families First Coronavirus Response Act. Highlights of this guidance are described herein.

Effective date: Both the paid family leave provisions and paid sick leave provisions will take effect on April 1, 2020, rather than the effective date of the FFCRA. As such, any leave that employees took related to COVID-19 prior to April 1 will not be reimbursed with payroll credits, and will not count toward the minimum leave that must be offered to employees who qualify for leave.

Employees sent home not eligible for paid leave: The DOL guidance provides that if the employer closes the worksite for lack of business or because it's required by local, state or federal law to close, employees sent home who are unable to work remotely will not be entitled to paid sick leave or paid family leave under FFCRA (and employers will not be eligible for payroll tax credits for leave during such closure). In the event that an employee is already out on paid sick leave or family leave when the employer closes, the employer must pay for the leave up to the closure, but has no further obligation to do so as of the date of closure. As such, employers forced to close should consider furloughing any employees who are unable to work from home, as such employees may be eligible to receive unemployment benefits.

Paid leave and remote work: If employees working from home are able to work their regularly scheduled hours despite the existence of circumstances that would otherwise qualify them for paid leave under FFCRA (for example, due to a child’s school closure, or quarantine ordered by the employee’s doctor), such workers will not be eligible for the emergency paid sick leave or family leave under FFCRA. If the employee is not able to work remotely or otherwise work the required hours for their position for one of the qualifying reasons for paid leave, then they are still entitled to such leave.

Intermittent leave for remote workers: Employees may be able to take paid family leave or paid sick leave intermittently while working remotely if the employer agrees. Such leave may be taken in any increment that the parties agree to. For example, an employee requiring paid family leave to care for their child during half of the weekday but able to work the other half could work from 9am-12pm, and then take leave from 1pm-5pm.

Intermittent leave for workers at worksite: If the employee and employer agree, paid family leave may be taken intermittently, as can paid sick leave which is taken to care for a child whose school or place of care is closed due to COVID-19 (but only in full-day increments). However, paid sick leave taken for any of the other qualifying circumstances (quarantine orders, experiencing symptoms and seeking a medical diagnosis, caring for an individual who is subject to a quarantine) may not be taken intermittently; instead it must be taken until they use the full amount of paid sick leave or until they no longer have the qualifying reason for taking such leave.

The small business exemption to the paid family leave requirements of the Families First Coronavirus Response Act: So far the DOL has only provided the below details for leave used to care for children; it has not provided an exemption from paid family leave for other circumstances, or the paid sick leave requirements for those diagnosed with COVID-19, awaiting diagnosis or ordered to quarantine. It is currently unclear whether exemptions for such other types of leave will be provided. Here is the guidance on the small business exemption for childcare leave:

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing (a) paid sick leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business or responsibilities; or 
3. There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Any one of the above determinations will be sufficient; employers do not need to meet all three. Documentation of meeting the exemption should be retained in the employer’s files, and should not be sent to the DOL at this time.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

1. employer employs fewer than 50 employees;
2. leave is requested because the child’s school or place of care is closed or childcare provider is unavailable, due to COVID-19 related reasons; and
3. an authorized officer of the business has determined that at least one of the three conditions described in the previous section is satisfied.