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Employers, It’s Time to Revisit COVID-19 Related Paid Leave Requirements

December 16, 2020

The DOL recently updated guidance under the Families First Coronavirus Response Act (FFCRA). Here’s what you need to know employers.

As we covered in a blog this past July, IRS Releases New Guidance on Reporting Sick and Family Leave Wages for Coronavirus Relief, the IRS has provided guidance to employers requiring them to report the amount of qualified sick and family wages they have paid to their employees under the Families First Coronavirus Response Act (FFCRA). Recently, the requirements got a “fine tuning”. Here’s what you should be aware of going forward.

Refresher on the FFCRA

Under the FFCRA, employers with fewer than 500 employees qualify for expanded family and medical leave for specified reasons related to COVID as well as expand food assistance and unemployment benefits and more.

Check out our blog for the details, but essentially the FFCRA:

Expands family and medical leave:
-Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine.
-Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to childcare needs interrupted by COVID-19.

Expands paid sick leave:
-Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay for any employee who is unable to work because he/she is quarantined or experiencing symptoms of coronavirus.
-Employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
-Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay for any employee who is unable to work because of childcare needs.
-Employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

What’s new?

The subsidies under the FFCRA are set to expire at the end of 2020, but it’s possible that those mandated benefits will be extended to the end of 2021.

The FFCRA regulations were released last spring, but most recently, in response to a ruling by the U.S. District Court for the Lower District of New York, the DOL issued updated regulations that could require you to update your company’s plans.

Updated regulations

The federal court in NY invalidated four elements of the FFCRA regs-

  1. Rule that requires employees to document their need for leave prior to taking it
  2. Rule that allows employers to reject an employee’s request to take intermittent leave
  3. Rule that stipulates that leave protections and benefits only apply when work is available
  4. Broad definition of “health care workers”- health care workers are ineligible for the expanded paid leave benefits)

In response, the DOL changed some provisions and left others intact with a more detailed legal justification.

Under the revised regulations:

  • Documentation: A listed set of documents must be “furnished either orally or in writing as soon as practicable” even if it comes after the leave is granted.
  • Intermittent leave- Teleworking Employees are to be given greater leeway in taking intermittent paid leave than those working at employer jobsites. Those working at jobsites can only take a full day’s leave under several scenarios including quarantine requirements, experiencing COVID symptoms, caring for a sick loved one.
  • Work available rule- The DOL specifies that paid sick leave is not available to employees who had been furloughed without pay even if their circumstances would’ve otherwise qualified them for paid leave
  • Definition of healthcare provider- Healthcare providers under the revised DOL rules are those who provide diagnostic, preventive, treatments or other patient care services. This excludes janitorial staff and food service workers who work in healthcare facilities.

We’ll keep you posted on Congress’ decision to extend paid leave provisions beyond 2020. Contact us for further guidance.

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