772 / Could an employer deny the additional paid sick leave under the Families First Coronavirus Response Act (FFCRA)? Could an employer permit non-traditional pay situations?

Editor’s Note: The FFCRA paid leave requirements expired at the end of 2020. Employers who continued to offer COVID-related paid leave remained eligible for a tax credit in 2021. The rules discussed below generally applied only for the 2020 tax year.

Editor’s Note: In early August, a New York federal court¹ vacated four Department of Labor (DOL) rules implementing the Families First Coronavirus Response Act (FFCRA) paid leave provisions, as follows:

(1)  The court struck down the DOL “work availability” rule, meaning that employers may now be eligible for paid leave even if there is no work available (assuming the employee otherwise meets one of the requirements for receiving paid leave).

(2)  The court vacated the DOL definition of “healthcare provider”, which is important because employers are permitted to exclude healthcare providers from coverage under the paid leave law. Healthcare employers will now be required to consider exclusion from FFCRA eligibility on a case-by-case basis based on the individual employee’s job duties.

(3)  The DOL “intermittent leave” rules were also partially invalidated. Now, New York employers cannot require employees to gain consent for intermittent leave. This is especially important for employees who may be counting on paid leave to provide flexibility now that some schools are opening on reduced or hybrid schedules.

(4)  Finally, the court ruled that employers cannot condition FFCRA leave on advance employee documentation of the details leading to the need for paid leave.

This ruling impacted employers located in New York. The rules below generally continued to apply even after the court decision.

Employers could deny paid leave to employees who had not provided requested documentation to support their claim. Documentation requirements included the employee’s name, requested leave dates, reason for leave and a statement that the employee was unable to work or telecommute. Other documentation depended upon the reason for the leave, and could include a notice of school closure or a health provider’s written order to quarantine. Further, all pre-existing FMLA certification requirements remained in effect with respect to the 10-week FMLA period.

According to DOL FAQ, employees could take their leave intermittently to provide for childcare while also telecommuting. If the employer agreed, intermittent leave could be provided in any increments—even to allow for breaks in the day for a parent to provide childcare. The DOL provided the following example: If employer and employee agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

Unless teleworking, paid sick leave had to be taken in full day increments if the leave was taken because the individual was sick or caring for someone who was sick. In these cases, leave had to be taken until the full amount was used up or there was no longer a valid reason to take paid sick leave (in recognition of the fact that the leave was designed to prevent the spread of the virus). Leave, under these circumstances, remained available if not taken until the end of 2020 if the employee had a qualified reason.

---

Planning Point: On a related note, EEOC guidance clarified that employers who permitted employees to work remotely during the pandemic were not required to continue to permit telework indefinitely. Some employers have changed the essential job functions of employees to provide flexibility and accommodate telework in the wake of the pandemic. Generally, the Americans with Disabilities Act requires employers to make reasonable accommodations to permit employees to complete their essential job functions. The EEOC guidance clarifies that the rules have not changed, so that employers are not required to continue to permit telework as a “reasonable accommodation” under the law. However, an employee’s ability to successfully complete all essential job requirements remotely may be a factor in considering whether a request for remote work is reasonable.

---

For childcare reasons, intermittent leave was permissible even if the employee could not telecommute (for example, leave could be taken on Monday, Wednesday and Friday, while the employee reported for work on Tuesday and Thursday) so long as employer and employee agreed.

FFCRA leave (and available tax credits) applied only for periods beginning after April 1, 2020²—even if the employer closed prior to that date for coronavirus-related reasons, employees were not eligible. Similarly, if the employer closed entirely, employees were not eligible for FFCRA leave and could only resort to unemployment benefits. If the employer closed while the employee was already on FFCRA leave, the employer was required to pay any leave already taken under the Act. However, once the employer closed, the employee was no longer eligible for sick leave benefits.

Furloughed or laid off employees similarly did not qualify for sick leave, nor did sick leave hours become available to make up for reduced hours due to lack of work (even if caused by COVID-19). If a qualifying reason (like providing childcare) caused the reduced hours, FFCRA paid sick leave could be used to make up the difference.

School Reopening Guidance

The DOL FAQ offered insight into how a school’s reopening plans impacted employees’ right to paid leave. The DOL examined various scenarios and provided clarification on each.

If the child’s school remained closed to in-person instruction (so that only remote learning was offered), the employee generally had a qualifying reason to take FFCRA leave.

If the school offered a hybrid program, so that students attended school in-person on certain days and received remote instruction on other days, employees had a qualifying reason, but only with respect to the days that their children were not eligible for in-person instruction. This is likely true even if the school was only open to in-person instruction for certain hours of each day.

If it was completely up to the family whether to send the child to school every day or keep the child home for remote instruction, the employee did not have a qualifying FFCRA leave reason. This was true regardless of whether the family kept the child home out of fear of contracting COVID-19.

---

Planning Point: Under all scenarios, if someone else was available to care for the child even when the school is closed, the employee did not have a qualifying reason to take leave. As a result, employers may wish to ask about the availability of an employee’s usual childcare provider if school was closed on certain days or for certain hours of each day.

---

Summer FFCRA Guidance

FFCRA leave was generally available to parents who could not work because of childcare needs when the child’s usual place of care or school was closed or unavailable due to COVID-19. After schools closed for summer, many questioned their eligibility based on cancellations for summer camps, summer enrichment programs or other childcare alternatives.

The DOL clarified its original guidance to provide that an employee’s mere interest in a summer program that was cancelled is insufficient to establish FFCRA eligibility. If the child was already enrolled in a program or care option that was cancelled, the parent may have been FFCRA eligible. Enrollment in prior summers or other evidence showing that it was “more likely than not” that the child would have participated in the program absent COVID-19 was likely sufficient. Submission of applications, payment of required deposits or other evidence of planned participation typically had to be provided to support eligibility for FFCRA leave.

The DOL confirmed that this was a fact-intensive inquiry and there was no “one size fits all” approach to determining FFCRA eligibility. Parents were required to specifically identify the program that was cancelled and provide a statement that no other suitable childcare was available.³