DOL Posts More FAQs on Paid Leave Under FFCRA; Topics Include Small Business Exemption, Continuing Health Coverage, and Combining Leave With Other Benefits

The DOL’s Wage and Hour Division has posted more FAQs regarding paid sick and family leave under the Families First Coronavirus Response Act (FFCRA) (see our Checkpoint article). The 45 new FAQs—which have been added to the DOL’s 14 previously posted FAQs (see our Checkpoint article)—offer important new details and clarifications. Here are highlights:

• Small Business Exemption (Q/As 58–59). A business with fewer than 50 employees may be exempt from providing paid sick and family leave due to coronavirus-related school or place of care closures or child care provider unavailability, but only if an authorized officer of the business determines that (a) providing leave would cause the business’s expenses and financial obligations to exceed available revenues and the business to cease operating at a minimal capacity; (b) the absences would—for specified reasons—create a substantial risk to the business’s financial health or operational capabilities; or (c) the employer would not be able to operate at a minimal capacity because it would have insufficient workers to perform the labor or services provided by the absent employees.
• Group Health Plan Coverage (Q/As 30 & 51). Employers are required to maintain an employee’s group health plan coverage during paid family leave on the same terms as if the employee had continued to work. (And the employee generally must continue to make any normal contributions to the cost.) COBRA rights may be triggered if an employee does not return to work at the end of the paid family leave. If an employee elects to take paid sick leave, the employer also must maintain group health plan coverage to comply with HIPAA, which generally prohibits health-based eligibility conditions or benefits limitations (such as actively-at-work requirements). Also, taking paid sick leave will not affect the date on which an employee’s health coverage starts if the coverage has a waiting period.
• Health Providers and Emergency Responders (Q/As 55–57). The FAQs contain two definitions of health care provider—one for determining whose advice to self-quarantine can be relied on as a reason for paid sick leave, and a much broader definition for determining which employees can be denied paid sick or family leave under the FFCRA. The latter definition includes any employee of a wide range of health industry employers and their contractors, as well as any individual designated as necessary by the highest official of a state or territory. Emergency responders who may be denied paid sick or family leave are also broadly defined.
• Combining Paid Leave With Preexisting Benefits (Q/As 31–34). Four FAQs consider when paid sick and family leave under FFCRA may be supplemented by preexisting benefits or additional employer payments. Generally, employers may agree to such supplementation, but may not require employees to use preexisting leave entitlements. If paid sick or family leave under FFCRA is supplemented, the aggregate amount paid may not exceed the employee’s normal earnings (e.g., if paid leave under the FFCRA provides two-thirds of an employee’s normal earnings, preexisting paid leave may only add an additional one-third of the employee’s normal earnings). In any event, an employer is not entitled to tax credits for amounts in excess of the FFCRA statutory limits.
• Intermittent Leave (Q/As 20–22). Employees who are teleworking may take paid leave intermittently in any increment—regardless of the reason for the leave—if the employer agrees. Employees who are not teleworking may take paid family leave intermittently if the employer agrees, and may take paid sick leave intermittently if the employer agrees and the paid sick leave is taken to care for a child due to school or place of care closure or child care provider unavailability (i.e., not due to quarantine, isolation, seeking diagnosis after experiencing symptoms of COVID-19, or to care for someone quarantined or isolated due to COVID-19).
• Documentation (Q/As 15–16). Two FAQs explain the documentation that employers must obtain from employees who request paid sick or family leave, and offer examples of appropriate documentation in various circumstances.

The FAQs also address telework (Q/As 17–19); the effects of worksite closures, furloughs, and scheduled work hour reductions (Q/A 23–28); unemployment insurance (Q/A 29); how employers can satisfy their paid leave obligation if they participate in a multiemployer plan (Q/As 35–37); the definitions of employer, employee, and “son or daughter” (Q/As 38–40); enforcement (Q/As 41–42); reinstatement rights (Q/A 43); the effect of taking paid leave on other leave entitlements—including FMLA, leave mandated by state or local law, and leaves under an employer’s policy (Q/As 44–46); the hours threshold for distinguishing full-time from part-time employees (Q/As 48–49); and public-sector employee issues (Q/A 52–54).

EBIA Comment: These FAQs clarify many questions that will arise when the FFCRA’s mandate is applied to real-world situations. They also highlight how mandated leaves can invoke a variety of other legal issues, such as health coverage obligations under FMLA, continuation coverage under COBRA, HIPAA, and interactions with an employer’s other plans (e.g., vacation, sick leave, or PTO plans). For more information, see EBIA’s Group Health Plan Mandates manual at Section XVII.C (“Maintenance of Group Health Plan Benefits”). See also EBIA’s Fringe Benefits manual at Section XXII.G (“Other Laws Affecting Vacation/PTO Plan Design”), EBIA’s COBRA manual at Section VII (“Qualifying Events: What Triggers COBRA?”), and EBIA’s HIPAA Portability, Privacy & Security manual at Section XI.B (“What Is a Health Status-Related Factor?”).

Contributing Editors: EBIA Staff.