Employers, The USDOL Is Enforcing Paid Sick and Emergency Family Leave Under FFCRA

By: Amy Epstein Gluck

Employers, remember that honeymoon period where the U.S. Department of Labor (DOL) wasn’t enforcing the Families First Coronavirus Response Act (FFCRA) for a few weeks? They wanted to give time to companies to get up to speed with the FFCRA’s requirements.

The time is a distant memory as DOL is now penalizing violators.

In fact, DOL investigators just ordered one company to pay back wages to an employee for refusing to provide sick leave under the newly passed Emergency Paid Sick Leave Act (EPLSA), part of the FFCRA, after his healthcare provider advised that he self-quarantine while awaiting a family member’s test for coronavirus.

Remind Me, What IS FFCRA?

As we discussed way back when, FFCRA provides all small(ish) businesses—those with less than 500 employees—tax credits to provide employees with paid leave, either for the employee’s own health needs (paid sick leave or PSL) or to care for family members (emergency family medical leave or EFMLA).

Under the FFCRA, which I detailed for you here, a company must provide up to two weeks (80 hours) of PSL for any full- and part-time employee who cannot work or telework because of one or more 6 reasons, which, to refresh your memory, include:

  1. Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. A healthcare provider has advised an employee to self-quarantine due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;medic-563425_1920
  4. Employee is caring for a family member (or roommate) who is subject to one of the above orders or advice;
  5. Employee is caring for a child if the school or place of care of the employee’s child is closed, or the kid’s childcare provider is unavailable, because of COVID-19; or
  6. Employee is experiencing another substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.

There’s still not a lot of guidance on that last reason.

While any one of these six reasons qualify an employee for 80 hours of PSL under the FFCRA, only one qualifies an employee for ten weeks of paid family medical leave: the employee cannot work – including telework – because the employee must care for a child if the school or place of care of the employee’s child is closed, or the kid’s childcare provider is unavailable, because of COVID-19.

The goal here is twofold: employers keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and their families’ health.

What Happened Here? Why Did DOL Ding This Employer?

Recently, DOL investigators found that Discount Tire Centers (based in CA) failed to pay one of its employees who qualified to receive PSL under the FFCRA for time off after the employee provided to the company his doctor’s instructions to self-quarantine.

The employer denied the employee’s request for paid sick leave. Why? This looks like reason #2, above, right?

Well, DOL reports that the company believed that the employee had to provide proof of a positive coronavirus test to qualify for the paid leave.

Employers, this is wrong.

The FFCRA does NOT require a positive COVID-19 test in order to trigger employer obligations to provide paid sick leave or paid family medical leave.

Employer Takeaway

“This case serves as a strong signal that the U.S. Department of Labor is working to protect employee rights and educate employers during the coronavirus pandemic,” said Wage and Hour District Director Rodolfo Cortez in San Diego, California.

I like this—it’s a dual goal. Employers, if you are confused about the information  employees need to provide in order to obtain paid leave under the FFCRA (or documentation needed to obtain the tax credits to pay for the leave), read the Act, contact your counsel, have a policy. This mistake was avoidable.

 

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Amy Epstein Gluck

Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.