New Guidance from the DOL on Administering FFCRA Leaves

Summary of Keypoints

• Source of guidance: The U.S. Department of Labor released a Questions and Answers document to help employers administer FFCRA leave provisions ahead of the April 1 implementation date.
• Employee eligibility limits: FFCRA leaves are not available to employees who are furloughed, have reduced hours, or work at locations that are closed due to shutdowns, shelter-in-place orders, or business slowdowns.
• No retroactive application: Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA), along with related payroll tax credits, do not apply retroactively to absences occurring before April 1.
• Intermittent leave rules: EPSL and EFMLA may be taken intermittently in specific situations, as outlined in DOL guidance.
• Employer compliance requirements: Employers may not require employees to use other paid leave before FFCRA leave and should retain documentation showing employees’ eligibility, pending further IRS guidance.

The DOL has provided Questions and Answers document for employers, to provide guidance ahead of the implementation date on Wednesday, April 1. The following are some highlights from the updated guidance:

• These leaves are not available to employees with reduced hours, furloughed employees, or employees whose workplaces are closed. See questions 23-28.
• These leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns. See question 23.
• These leaves (and payroll tax credit) are not retroactive. Employees are not entitled to pay under these leaves if they were absent or out of work (for any reasons) prior to April 1. See question 13.
• Both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations. See Questions 20-22 for explanations about when intermittent leave is allowed.
• Employees may not be required to use other forms of paid leave prior to or concurrently with EPSL or EFMLA. See questions 32 and 33.
• Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements will be outlined in soon-to-be-released IRS guidance. See Questions 15 and 16.