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Exemptions from Paid Leave Requirements of FFCRA

By: Jackson Lewis P.C.

August 6, 2020

Disclaimer: As this situation is evolving daily, MagMutual recommends reviewing the latest guidelines for the most current information. Visit the MagMutual COVID-19 Resource Center to learn more.

General Requirements
Under two separate provisions of the Families First Coronavirus Response Act (FFCRA), eligible employees generally are entitled to paid leave due to school closures, place of care closures, or child care unavailability related to the COVID-19 pandemic.

The Emergency Paid Sick Leave Act (EPSL) provides up to 80 hours of an employee’s regular rate of pay (for full time employees, those normally scheduled to work at least 40 hours each workweek; for part-time employees, average working hours for two weeks or 10 days) for employees caring for their children whose school or place of care has been closed, or whose child care provider is unavailable, due to the COVID-19 pandemic. The EPSL provides a maximum payout of $200 per day or $2,000 over the 10-day period. EPSL does not count against any other paid sick leave available to the employee.

An employee also may take up to 12 weeks of paid leave due to school closures, place of care closures, or child care unavailability related to the COVID-19 pandemic under the Emergency Family Medical Leave Expansion Act’s (EFMLEA) provisions of the FFCRA.

Employees taking leave under the EFMLEA may substitute the first two weeks with any accrued vacation, personal leave, or medical or sick leave available to employee under the employer’s policies at the employee’s regular rate of pay (or the rate otherwise available under the applicable policy.) The remaining 10 weeks are to be paid at a rate of no less than 2/3 of the employee’s regular rate of pay for the hours regularly worked by the employee, capped at $10,000.

Employees who combine EPSL and EFMLEA for the full 12 weeks of leave are entitled to a maximum of $200 per day, with a cap of $12,000 for the 12-week period.

Employers who provide leave under the EPSL or the EFMLEA are entitled to a tax credit for leave paid pursuant to the foregoing provisions.

Exemptions from the EPSL and EFMLEA - Healthcare Providers (HCP)
The FFCRA permits employers of HCPs to exempt (or exclude) their employees from the leave requirements of EPSL and EFMLEA. However, the FFCRA’s exclusion of HCP from these leave provisions is not an automatic blanket exclusion. The Department of Labor regulations implementing the FFCRA provide that employers of HCPs “may exclude” healthcare providers and emergency responders from the EPSL and EFMLEA requirements, but on a case-by-case basis. In other words, even though HCPs may be excluded from these leave provisions the employer remains covered by the FFCRA.

What does the exemption mean for employers of HCPs?
Significantly, the Department of Labor encourages employers to be “judicious” in their application of the exemption, especially as it applies to employees seeking leave for their own COVID-19-related reasons (such as testing positive or experiencing symptoms) in order to mitigate the spread of the virus.

Nevertheless, the DOL permits employers to impose a complete or a partial exemption on its HCPs. For example, an employer may apply the exemption to deny a covered employee’s FFCRA leave request due to school closures, place of care closures, or childcare unavailability related to COVID-19, but could chose not to invoke the exemption if the same employee is COVID-19 positive or experiencing symptoms. This dual approach is consistent with the Centers for Disease Control and Prevention’s guidance of having individuals who are infected or experiencing COVID symptoms quarantine or isolate, but permitting the business to still meet its needs.

Employers should have open communications with employees about school plans, the potential need for teleworking, and the needs of the business as the new school year begins. Employers should document the critical business needs for each denied request for leave. Finally, when assessing employee requests, employers should be careful that similarly situated circumstances are treated consistently to avoid claims of discrimination.

Additional Considerations
Schools that are reopening remotely only are considered closed for purposes of FFCRA.

Employees who are given the option of in-person versus remote learning, and independently choose remote learning, likely are not eligible for EFMLEA because the school is considered physically open.

The regulations do not address the applicability of EFMLEA to hybrid situations, such as children are in-person part of week and remote other days. Presumably, the EFMLEA applies for days the children are required to be remote if the employee is unable to telework. The DOL’s Question and Answer Guide suggests that employers can consider whether to permit intermittent leave during such periods. If permitted, then employees should receive their regular rate of pay for such non-EFMLEA-covered days.

Employers cannot deny leave solely on the basis that employees were capable of teleworking prior to the start of the school year, but are now asking for paid leave under the EFMLEA. Requests for EFMLEA must be considered as the DOL recognizes a number of legitimate factors may create changed circumstances for the start of a new school year.

Employees who are able to telework while their children’s schools are considered closed are not eligible for EPSL or EFMLEA and should be paid their regular pay.

Employers should ensure they continue to keep track of and coordinate employee leave time. Employees who have already exhausted their 80 hours of EPSL are not entitled to additional EPSL. Likewise, employees who have exhausted their 12 weeks of Family and Medical Leave Act (FMLA) leave in the 12 months your business uses to calculate FMLA leave are not entitled to an additional 12 weeks of FMLA – including EFMLEA – until the start of their next 12-month cycle.

When considering requests for EFMLEA, keep in mind that the amount of EFMLEA that is available to an employee will depend on how much FMLA leave the employee has already used during the employer’s 12-month measurement period. For example, if employee has already used nine weeks of FMLA, he is only entitled to three weeks of EFMLEA, which may make a difference when deciding if the request can be granted or the employer applies the exemption.

Finally, be mindful of local and state leave laws that may impose different or greater obligations on employers.

 

If your organization has employment practices liability (EPL) coverage with MagMutual and has any specific employment-related questions, please utilize the Jackson Lewis P.C. Hotline by calling 1-866-758-6874.

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.