COVID-19 & FFCRA Leave: Answers to Your Latest Questions

As cases of COVID-19 have surged in the United States, we have seen an increase in questions from employers related to keeping their workplace safe and complying with the Families First Coronavirus Response Act (FFCRA). To help you to continue to address these challenges, here are the answers to some of our recent frequently asked questions.

General COVID-19 Questions

Q: Now that a COVID-19 vaccine is available in the U.S., can I require employees to get it?

A: In the past, the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal nondiscrimination laws, has generally advised against requiring vaccines, such as the flu vaccine. On December 16, 2020, the EEOC published updated guidance that addresses COVID-19 vaccination specifically. While the guidance doesn't expressly endorse or prohibit mandatory vaccination, it does address various issues that may impact employers, including:

The guidance is available in full here (section K covers vaccinations).

Additionally, keep in mind that some state and local jurisdictions may prohibit or limit employers from mandating employee vaccinations or have privacy laws that may impact employers. Even if an employer can mandate COVID-19 vaccination, there are numerous issues to consider before doing so, such as:

The availability of a vaccine (the vaccine is expected to be limited to healthcare personnel, essential workers and higher-risk populations at first);
The risk to others if employees don't get vaccinated;
The effectiveness of masks, social distancing, and other safety measures in preventing the spread of COVID-19 in their particular workplace so far;
The likelihood of employees seeking out the vaccine without a mandate;
The risk of litigation or workers' compensation claims if employers do/don't require vaccination (such as, an employee experiencing side effects from the vaccination);
Requirements for providing accommodations for disabilities and sincerely held religious beliefs and practices;
Protections for employees under the National Labor Relations Act (NLRA) if they work together to oppose a vaccine mandate; and
The potential impact on employee morale given the work environment and culture;

Rather than mandating COVID-19 vaccination, many employers plan to encourage employees to get it. Before implementing any such program, consult legal counsel.

Q: If an employee tests positive for COVID-19, should I tell their co-workers?

A: If an employee is confirmed to have COVID-19, inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness). As a precautionary measure, consider asking all employees who worked closely with that employee to self-quarantine for the period of time recommended by federal, state, and local health officials to better ensure that the infection does not spread. In addition, have a cleaning company complete a deep cleaning of your workspace. Also, consider contacting local health officials for further guidance.

Note: Treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file.

Q: Can I require a negative test for COVID-19 before allowing an employee to return to the workplace?

A: The EEOC says that, under federal law, employers may take steps to determine if employees entering the workplace have COVID-19. Therefore, under federal law, an employer may choose to administer or require COVID-19 testing before employees enter the workplace to determine if they have the virus. However, keep in mind that state and local rules may restrict or prohibit such requirements. For example, California recently adopted emergency rules that, among other things, prohibit requiring a negative COVID-19 test for an employee to return to work.

Note: Administer all testing protocols consistently and maintain the confidentiality of all test results.

Q: An employee tested positive for COVID-19 and we were forced to close for a week as a result. Would employees be entitled to file for unemployment benefits?

A: Depending on the state, the length of the closure, and the employee's work history, employees who are prevented from coming to work because their employer temporarily ceases operations due to COVID-19 may be eligible for unemployment benefits. States have issued guidance addressing this issue and many are suspending waiting periods for unemployment benefits. Check your state law, communicate with employees regarding their eligibility for unemployment benefits, and provide any required notice and information accordingly.

Q: An employee texted a manager, saying "not feeling safe at work." What should we do?

A: Reach out to the employee to seek specifics. If the employee has concerns about COVID-19, determine what, if any, steps you could/should take to address them. Employees who refuse to report to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:

Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;
They genuinely believe that an imminent danger exists;
A reasonable person would agree that there is a real danger of death or serious injury; and
There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Section 7 of the NLRA, which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.

Employees may also have certain rights under state and local orders and/or may be entitled to leave under federal, state, and local leave laws.

Q: We had to close in the spring and now have recalled employees. What should we do if some employees don't want to return because they would lose unemployment benefits?

A: Unemployed workers typically have to attest each week that they haven't worked and haven't refused an offer of employment to keep receiving benefits. Keep in mind that employees may still be eligible for unemployment benefits if they refused the offer for "good cause" (as defined by state law). For instance, if you substantially change the job or pay, the employee may be eligible for unemployment benefits. Some states will also continue benefits if the worker rejected the offer because they may be at a higher risk of severe illness from COVID-19.

FFCRA Questions:

Background:

Effective April 1, 2020, the federal Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide paid leave to employees for certain reasons related to COVID-19 and offer tax credits to employers that do so.

Q: When does the FFCRA expire? How will this impact tax credits? Could the FFCRA be extended? (Updated 12/28/2020)

A: The leave requirements are set to expire on December 31, 2020. On December 27, 2020, President Trump signed the COVID-related Tax Relief Act of 2020 (CTRA), which extends the tax credit portion of the FFCRA for employers that voluntarily offer emergency paid sick leave or PHEL through March 31, 2021. The mandatory leave portion of the FFCRA will terminate as expected on December 31, 2020.

Legislative proposals are being considered by Congress that may expand, simplify and/or extend the FFCRA. ADP® will continue to closely monitor legislation and guidance affecting the FFCRA.

Note: Many state and local jurisdictions have enacted their own paid leave laws or expanded existing leave laws for COVID-19, and some of these requirements extend beyond December 31, 2020. For more information, visit the Compliance Alerts section of our COVID-19 Resource Center.

Q: What are the qualifying reasons for FFCRA leave?

A: The FFCRA entitles employees to two types of leave: Emergency Paid Sick Leave (EPSL) and Public Health Emergency Leave (PHEL):

EPSL:

Employees are entitled to use up to 80 hours of EPSL when they are unable to work (or telework) because of the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for their son or daughter due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
The employee is experiencing any other 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.

PHEL:

Eligible employees may use up to 12 weeks of PHEL (also called Expanded FMLA) to care for their son or daughter under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency.

Q: Are there any exemptions from the requirements to provide FFCRA leave?

A: Under the FFCRA, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of EPSL and/or the PHEL requirement.

Additionally, employers with fewer than 50 employees are exempt from the FFCRA requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons if it would jeopardize the viability of the business.

Q: An employee was advised to quarantine because their daughter tested positive for COVID-19. Would we be exempt from providing FFCRA leave if we have fewer than 50 employees?

A: As mentioned above, the exemption for employers with fewer than 50 employees only applies to the requirement to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons (and only if it would jeopardize the viability of the business). Thus, if the employee is in need of leave because they are subject to a federal, state, or local quarantine order or their daughter is subject to such an order, the exemption would not apply.

Q: An employee is quarantining because a family member has COVID-19 and lives in the same household. However, there's another adult in the household who provides care for this family member. Is the employee eligible for FFCRA leave?

A: Leave for caring for an individual in quarantine is limited to an employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if they were quarantined. An employee may take EPSL under this provision if the employee is unable to perform work for their employer and if the individual depends on the employee to care for them and is either:

Subject to a quarantine or isolation order as defined above; or
Has been advised to self-quarantine by a health care provider because of a belief that the individual has, or may have, COVID-19, or is particularly vulnerable to COVID-19.

Even if the employee doesn't meet the above criteria, there are a few other scenarios that may entitle the employee to FFCRA leave. For instance, perhaps the employee is subject to a federal, state, or local quarantine order themselves based on their close contact. Or, perhaps the employee has developed symptoms and has been advised by a healthcare provider to remain home.

Q: What type of documentation can I require for FFCRA leave?

A: In amended regulations, the Department of Labor said that employees must provide documentation as soon as practical that contains the following information:

Employee's name;
Date(s) for which leave is requested
Qualifying reason for the leave; and
Oral or written statement that the employee is unable to work because of a qualified reason.

Additional documentation is required depending on the reason for the need for leave:

A quarantine or isolation order. The employee must also provide the name of the government entity that issued the order.
A healthcare provider advised self-isolation. The employee must also provide the name of the healthcare provider.
Seeking a medical diagnosis. Employers may require the employee to identify their symptoms and a date for a test or doctor's appointment. They may not, however, require the employee to provide further documentation in order for the employee to use paid sick leave for COVID-19 related symptoms.
To care for a son or daughter. An employee must also provide:
- The name of the son or daughter;
- The name of the school, place of care, or childcare provider that has closed or become unavailable; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the FFCRA.

The employer may also request an employee to provide additional material needed for the employer to support a request for FFCRA tax credits.

Q: Can I require employees to provide their COVID-19 test result to be eligible for FFCRA leave?

A: No, employers may only require the employee to identify their symptoms and a date for a test or doctor's appointment. They may not require the employee to provide any further documentation in order for the employee to use paid sick leave for COVID-19 related symptoms.

Q: Can employees take FFCRA leave intermittently?

A: The answer differs depending on whether the employee is teleworking or working at their normal workplace, according to DOL guidance.

Remote employees:

Employees who are unable to telework their normal schedule of hours may use emergency paid sick leave intermittently, but only if the employer agrees to it. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

Employees working at their normal workplace:

Employees who are working at their normal workplace and who need FFCRA leave because their child's school/place of care is closed may also take such leave intermittently, but only if the employer agrees to it.

Emergency paid sick leave taken for any other covered reason (such as, isolation or quarantine) must:

Be taken in full-day increments.
Continue each day until the employee either: (1) uses the full amount of paid sick leave; or (2) no longer has a qualifying reason for taking paid sick leave.

This is because the intent of the FFCRA is to provide paid sick leave to keep the individual from spreading the virus to others.

Note: If the employee no longer has a qualifying reason for taking paid sick leave before they exhaust their emergency paid sick leave, they may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

Q: An employee who is on quarantine hasn't responded to any messages we've sent. What should we do?

A: Extenuating circumstances, such as having a severe case of COVID-19 or other life events, may prevent employees from responding. If you're unable to reach an employee, consider asking their emergency contact or co-workers who are friends with the employee to let the employee or a family member know you're trying to reach them. Keep in mind that taking adverse action against an employee for a protected absence could violate the FFCRA and/or state and local leave laws.

Note: Employers aren't permitted to require notice in advance of EPSL. After that, the employer may require the employee to provide notice of the need for leave as soon as practical. Absent extenuating circumstances, it will be reasonable for the employer to require the employee to comply with the employer's customary notice requirements for requesting leave.

Q: An employee engaged in personal travel and our state requires that they now quarantine for 14 days upon their return. Would the employee be entitled to FFCRA leave?

A: Yes, if the employee is subject to a state quarantine order or a government official has ordered them to quarantine, they would be eligible for EPSL under the FFCRA if they are unable to work or telework for that reason.

Q: How do I provide EPSL to part-time employees?

A: The amount of EPSL a part-time employee is permitted to take depends on how long they've worked for the employer as well as the average hours they've worked or are expected to work.

Part-time employees employed for at least six months:

These employees are entitled to EPSL leave in the amount of 14 times the average number of hours they were scheduled to work each calendar day over the prior six-month period, including any hours for which the employee took leave of any type.

Part-time employees employed for less than six months:

These employees are entitled to 14 times the number of hours the employee and the employer agreed to at the time of hire that the employee would work, on average, each calendar day. If there is no such agreement, the employee is entitled 14 times the average number of hours per calendar day that they were scheduled to work over the entire period of employment, including hours for which they took leave of any type.

Pay:

Pay for each hour of EPSL should be paid at the highest of the employee's average regular rate of pay, the federal minimum wage or state or local applicable minimum wage. Employers are required to use a weighted average of the employee's regular rate of pay for the purposes of FFCRA leave, following this two-step method:

Use the rules contained in the Fair Labor Standards Act (see a summary here) to compute the regular rate for each full workweek in which the employee has been employed over the lesser of:
- The six-month period ending on the date on which the employee takes leave; or
- The entire period of employment;
Compute the average of the weekly regular rates, weighted by the number of hours worked for each workweek.

Q: What happens once an employee exhausts all their FFCRA leave?

A: Determine whether the employee is entitled to additional leave under the federal Family and Medical Leave Act, state and local laws and orders, and/or employer policies. If an employee has a disability as a result of COVID-19 or otherwise, determine whether the employee is entitled to additional leave as a reasonable accommodation under the Americans with Disabilities Act and/or state and local law.

Q: Do I have to pay employees for the time they spend getting tested for COVID-19?

A: Under the FFCRA, employees are entitled to EPSL when they are unable to work because they are taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a COVID-19 test. If the testing occurs during non-work hours, then employers are generally under no obligation to pay for the time employees spend obtaining it, unless the employer is requiring the employee to undergo the testing.

Conclusion:

When addressing situations related to COVID-19, make sure you comply with applicable federal, state, and local laws, orders, and guidelines, many of which continue to evolve. For more information, visit our COVID-19 Resource Center.

Parts of this FAQ are based on content delivered by Littler Mendelson P.C. and Jackson Lewis P.C.

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