On March 18, the  Families First Coronavirus Response Act (FFCRA) was signed into law to respond to the economic impact of the COVID-19 pandemic.  Included in the legislation was a provision requiring employers (generally businesses with less than 500 employees with an exemption for public health employees)  to provide Emergency Paid Sick Leave and Emergency Paid Medical Leave when employees met certain criteria.  The paid leave would be funded by the federal government through payroll tax credits.

The effective date for the emergency paid leave provision was April 2, 2020 and the Department of Labor announced the regulations for implementation through a temporary rule issued April 1, 2020 that expires December 31, 2020.

We hosted several webinars on FFCRA paid leave and provided detailed information as it became available. CLICK HERE to read additional details about paid leave and other provisions of the FFCRA.

Business owners and employees should be aware of two important updates pertaining to the FFCRA explained below.

The Department of Labor updated FFCRA FAQs to address remote and/or hybrid learning schedules

The new FAQs (98-100) address when employees would be eligible for FFCRA Emergency FMLA to care for a child in a remote learning and / or hybrid learning environment.  

  • Hybrid Schedule (alternating in person and remote) – an employee is eligible for paid leave under FFCRA on the days the employee’s child is required to engage in remote learning.
  • Parent choice – if a school offers a choice between in person or remote learning and a parent chooses remote learning, the employee is not eligible for paid leave.  However, if the employee’s child is under quarantine order or advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible for paid leave under FFCRA.
  • Tentative remote reopen – if a school is beginning the school year under a remote learning program out of concern for COVID-19, but advises that it will consider in-person attendance later in the year, an employee is eligible to take paid leave under the FFCRA while the school remains closed.  

New York Judge struck down four provisions of the DOL Final Rule implementing elements of the FFCRA paid leave

On August 3, 2020, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York struck down four provisions of the Department of Labor regulations (Final Rule) implementing elements of the Families First Coronavirus Relief Act (FFCRA).  The impact of the decision has not been determined; further information will be available when the DOL decides whether or not to appeal the decision.

The four provisions struck down are:

  1. Work-Availability Requirement
    1. If overturned, the elimination of this provision has the potential to substantially impact employers required to provide paid leave.  The DOL made very clear that “lack of work” would not require an employer to offer paid leave under FFCRA.  Those employees would be eligible for unemployment, not paid leave.
    2. If the work-availability exclusion is adopted, any business under a shut down order would be required to pay employees up to 80 hours of emergency paid leave.  
  2. Definition of “Health Care Provider”
    1. The Judge challenged the broad definition 
  3. Employer Consent to Intermittent Leave
  4. Documentation Requirements

We are in this together,

Brinker Simpson & Company, LLC

Disclaimer: This alert is for informational purposes only and does not constitute professional advice. Information contained in this communication is not intended or written to be used as tax advice & cannot be used by the recipient to avoid penalties that may be imposed under the Internal Revenue Code. We strongly advise you to seek professional assistance with respect to your specific issue(s).