This summary tracks the DOL’s regulations as they pertain to what rights and obligations are associated with the employee’s return to work from Emergency Family and Medical Leave and/or Emergency Sick Leave under the FFCRA, as well as employers’ obligations regarding FFCRA record-keeping, and the regulations’ description of what will be “prohibited acts.”
The DOL regulations make clear that like the FMLA, eligible employees under the FFCRA have a right to be restored to the same or an equivalent position upon returning to work from Paid Sick Leave or Expanded Family and Medical Leave. However, an employer may deny restoration under these circumstances:
- (1) Employer can show that the eligible employee would not have otherwise been employed (e.g., layoff).
- (2) Key employee exception (for EFMLEA only). Denial of leave is necessary to prevent substantial and grievous economic injury to the operations of the employer.
- (3) Employer has fewer than 25 employees in which case the employer may deny restoration to an eligible employee who has taken EFMLEA leave if all of the following conditions are met:
- (i) Eligible employee took leave to care for son or daughter due to school or child care being unavailable/closed for COVID-19 related reasons;
- (ii) Eligible employee’s position at the time of leave does not exist at time of return due to economic or operating conditions that affect employment and are caused by a public health emergency during the leave;
- (iii) Employer makes reasonable efforts to restore the eligible employee to same or equivalent position; AND
- (iv) Where the employer’s reasonable efforts fail, employer makes reasonable efforts to contact the eligible employee during a one-year period if an equivalent position becomes available. The one-year period starts on the earlier of the date the leave related to a public health emergency concludes or the date 12 weeks after the eligible employee’s leave began.
Employers must maintain FFCRA documentation for four years, regardless of whether leave was granted or denied. Employer must also document information the employee provides orally. If an employer denies the request for Paid Sick Leave or Expanded Family and Medical Leave due to the Under 50 Employee exemption the determination must be documented “by [the Employer’s] authorized officer that it is eligible for such exemption” and the employer must maintain that documentation for four years.
In order to claim tax credits from the IRS, the Employer should also maintain:
- (1) Documentation to show the calculations/amount of Paid Sick Leave and Expanded Family and Medical Leave to employees who are eligible. This includes records of work, telework, and Paid Sick Leave and Expanded Family and Medical Leave.
- (2) Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
- (3) Copies of IRS Forms 7200 employers submitted to the IRS;
- (4) Copies of IRS Forms 941 that the employer submitted to the IRS, or if the employer uses a third-party payer, maintain the documents submitted to the third-party payer that show entitlement to the credit; and
- (5) Other documents needed to support the employer’s request for tax credits that are required by the IRS.
Other notable recordkeeping requirements include the following:
- Employee’s name, date or dates for which leave is requested, a statement of the COVID-19 related reason the employee is requesting leave and written support for such reasons, and a statement that the employee is unable to work, including by means of telework, for such reason.
- If leave is based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering the quarantine or the healthcare professional advising the self-quarantine. If the quarantined person is not the employee, document the person’s relation to the employee.
- If leave is based on school or child care provider unavailability/closure, the statement from the employee should have: the name and age of the children to be cared for, the name of the school or day care, and a representation that no other person will be providing care for the child during the period Expanded FMLA. If child is older than 14 need to document special circumstances if employee uses that as reason he/she cannot work or telework during daylight hours.
Prohibited Acts and Enforcement under the EPSLA
The DOL regulations spell out that employers cannot discharge, discipline, or discriminate against an employee who takes Paid Sick Leave under the EPSLA. Also, employers cannot discharge, discipline, or discriminate against employees who make complaints, institute a proceeding, testify, or plan to testify, about issues related to EPSLA.
The failure to provide Paid Sick Leave is considered a failure to pay the minimum wage as required by the FLSA and is therefore subject to enforcement and penalty provisions of the FLSA (Sections 216 & 217). Any discharge, discipline, or discrimination is considered a violation of Section 15(a)(3) of the FLSA and is subject to enforcement and penalty provisions of the FLSA (Sections 216 & 217).
Prohibited Acts and Enforcement under the EFMLEA
The DOL regulations spell out a different enforcement scheme for Emergency Paid Family Leave. The FMLA provisions on interference and discrimination are applicable to eligible employees taking, or attempting to take, leave under the EFMLEA. Therefore, FMLA enforcement provisions apply. An eligible employee can only file a private action to enforce the EFMLEA if the Employer is otherwise subject to the FMLA in the absence of the EFMLEA.
FFCRA Regulations Overview
- Six Qualifying Events for Emergency Paid Sick Leave
- FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- Continued Healthcare Coverage and the Intersection with Other Laws
- Calculating the paid benefits owed under the FFCRA
- Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
Associated Practice Groups: