The day after its passage, on March 19th of this year, we published our first blog on the Families First Coronavirus Response Act (FFCRA). The law created several new entitlements for American workers which required employers to quickly adjust. With the 24-hour news cycle, March 19th seems like a lifetime ago. And since then, Congress has added to the alphabet soup of Coronavirus response legislation, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the Paycheck Protection Program (PPP). While many might have grown weary of the pandemic and hearing about the federal government’s response, the FFCRA remains one of the most impactful and important pieces of legislation for many employers. With the status of school reopening this fall still in question, and the Department of Labor (DOL) busy clarifying portions of the FFCRA, we thought it was a good time to revisit the Act and provide some useful need-to-know updates as employers continue to navigate the COVID-19 pandemic.

The FFCRA has two main components, expanded Family and Medical Leave Act (FMLA) and Emergency Paid Sick Leave (EPSL), and applies to employers with fewer than 500 employees and all public employers.

Covered employees are entitled to take expanded FMLA leave due to a need for leave to care for a son or daughter under 18 years of age if the child’s school or place of child care has closed, or the care provider of the child is unavailable due to the COVID-19. It is important to remember the FFCRA simply adds a qualifying reason for FMLA leave, which is paid at 2/3 of the employee’s regular rate of pay. Employees are still entitled only to 12 total weeks of FMLA leave, regardless of the reason it is taken.

Covered employees are also entitled to up to 80-hours of paid sick leave if: 1) the employee is subject to a federal, state, or local quarantine or isolation order related to the pandemic; 2) the employee has been advised by a health care provider to self-quarantine due to the pandemic; 3) the employee is experiencing symptoms of Covid-19 and is seeking a medical diagnosis; 4) the employee is caring for an individual who is subject to a federal, state, or local quarantine or has been advised by a health care provider to self-quarantine; 5) the employee is caring for a son or daughter if the child’s school has been closed or their child care provider is unavailable due to the pandemic. Employees are entitled to their regular rate pay during leave for reasons 1-3, and 2/3 their regular rate for reasons 4-5.

  1. Employers are required to keep certain documents related to employee leave taken under the FFCRA

Employers with employees taking FMLA leave or paid sick leave will need to document several items to remain compliant with DOL regulations. First, they will need the name of the employee requesting the leave. Next, employers will need to document the dates for which leave is requested and the reason for leave. Finally, employers will need to keep a statement from the employee that he or she is unable to work because of the reason given by the employee for the requested leave. Additionally, if the employee is taking leave to care for a child, employers will also need to document: 1) the name of the child needing care; 2) the name for the school, place of care, or child care provider that has closed or become unavailable; and 3) a statement from the employee that no other suitable person is available to care for the child.

  1. The DOL is taking enforcement actions against employers for non-compliance with the FFCRA

The initial non-enforcement period has ended, and the DOL is actively taking action to ensure employers are complying with the FFCRA mandates. For example, the DOL recently brought enforcement action against employers in Minnesota, Pennsylvania, Massachusetts, and Texas for wrongly denying an employee’s request for paid sick leave to care for a child whose daycare center had closed. The action should serve as a warning for employers that while some federal agencies have relaxed enforcement action during the pandemic, the DOL is serious about ensuring employers are properly complying with new FFCRA entitlements.

  1. Summer camps are included in the definition of “place of care.”

Perhaps most relevant for summertime, the DOL clarified that the closure of summer school and summer camps all qualify as “place of care” for purposes of the paid FMLA leave paid sick leave. This means that employees may be entitled to paid FMLA or paid sick leave if their child’s summer camp is closed due to COVID-19. To qualify, employees will need to submit proof that the camp would have been a place of care of an employee’s child had it not closed for COVID-19 related reasons.

  1. Employees can take leave to care for certain children over the age of 18 who are incapable of self-care.

The DOL clarified that while the FFCRA states that employees are entitled to leave to care for a son or daughter under the age of 18 whose school or place of care has closed, the FFCRA actually extends to children over the age of 18 as well. Specifically, employees are entitled to take both sick leave and FMLA leave to care for a son or daughter over the age of 18 who are incapable of self-care because of a mental or physical disability when their place of care has closed.

  1. Employees returning from states under the Ohio Department of Health’s Travel Advisories are likely not entitled to paid sick leave under the FFCRA.

The Ohio Department of Health (ODH) recently began issuing travel advisories, recommending that Ohioans returning from travel to states with a positive COVID-19 test rate of 15% or higher quarantine for two weeks upon their return. Under the FFCRA, an employee who is subject to a federal, state, or local quarantine or isolation order related to the pandemic is entitled to up to 80 hours of emergency paid sick leave during their quarantine period. However, the ODH’s travel advisories likely do not qualify as an “order” as contemplated by the FFCRA, meaning that employees quarantining under the advisory are likely not entitled to emergency paid sick leave under the FFCRA. Because there may be other relevant considerations, employers are encouraged to consult with their human resources department and legal counsel before denying a request for emergency paid leave under the FFCRA for purposes of quarantining under an ODH travel advisory.

The attorneys at Fishel Downey Albrecht & Riepenhoff LLP actively advise public and private employers on matters related to the state and federal response to the COVID-19 pandemic.  If you have any further questions, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.