Millions of small businesses have been awaiting further guidance on the Family First Coronavirus Response Act (“FFCRA”), which applies to private businesses with fewer than 500 employees. On April 6, 2020, the U.S. Department of Labor published its temporary rule issuing regulations pursuant to the FFCRA.  This article will discuss the U.S. Department of Labor’s guidance on continuation of health care coverage for employees using paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) or expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), under what circumstances an employee is eligible to take intermittent leave, and what the requirements are for an employee’s return to work.

Continuation of Health Care Coverage for Employees on FFCRA Leave

An employee taking paid sick leave or expanded family and medical leave under the FFCRA is entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave.  Employers must continue to maintain the same group health plan benefits provided to the employee and any family members covered under the plan as was available prior to taking leave, and the employee remains responsible for paying the same portion of the plan premium that the employee paid prior to taking leave.

Intermittent Leave

There is no requirement that employers must permit employees to take FFCRA-based leave on an intermittent basis; rather, employees may take paid sick leave or expanded family and medical leave intermittently if the employer and employee agree.  It is preferable that this understanding be memorialized in a written agreement, but the rule states that “a clear and mutual understanding between the parties is sufficient.”

An employee who is teleworking may take intermittent leave for any qualifying reason in any agreed increment of time so long as there is an agreement between the employee and his or her employer.  There are few constraints on an employee’s use of intermittent leave while teleworking because there are no risks that the employee is introducing COVID-19 into the employer’s remaining workforce at the job site.

Workers at the Job Site
However, if the employee is still working from the employer’s regular job site, there are certain circumstances that would limit the ability to use leave intermittently notwithstanding an agreement between the employer and employee.  Namely, an employee still reporting to the job site may only take intermittent leave in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at the job site.

For instance, an employee may take intermittent leave to take care of a child whose school or place of care is closed because the absence of confirmed or suspected COVID-19 poses no greater risk of spread to the job site.  But if an employee begins taking leave for any qualifying reason other than lack of child care (i.e. direct COVID-19 illness or caring for a family member with COVID-19), the employee must continue taking leave each day until the employee either uses the full amount of paid sick leave or no longer has a qualifying reason for taking paid sick leave because, under these circumstances, there is an unacceptably high risk that the employee might spread COVID-19 to other employees at the job site.

Reminder: Expanded family and medical leave does not increase the amount of allowable FMLA leave.  If an employee has already taken regular FMLA leave, the maximum twelve weeks of EFMLEA leave is reduced by the amount of FMLA leave entitlement taken in that year.  However, if the employee has exhausted the twelve workweeks of FMLA or EFMLEA leave, he or she may still take paid sick leave under the EPSLA for a COVID-19 qualifying reason.  Likewise, an employee’s use of paid sick leave under the EPSLA does not prevent the employee from taking expanded family and medical leave under the EFMLEA.

Employees Returning to Work after FFCRA Leave

Like with other FMLA leave, an employee is entitled to be restored to the same or an equivalent position after taking paid sick leave or expanded family and medical leave under FFCRA.  However, an employee is not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken.  For example, an employer may demonstrate that it had to close the job site for legitimate business reasons.

In addition, an employer may refuse to return an employee who took FFCRA leave to his or her same position if the employee is a highly compensated “key” employee as defined by the FMLA (i.e. a salaried FMLA-eligible employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee’s job site) and if the restoration of the employee will cause “substantial and grievous economic injury to the operations of the employer.”

Employers with Fewer than 25 Employees
The return-to-work provisions under the FFCRA do not apply to an employer who has fewer than 25 employees if all four of the following conditions are met:

  1. The employee took leave to care for a child whose school or place of care was closed;
  2. The employee’s position no longer exists due to economic or operating conditions that affect employment and are caused by COVID-19 related reasons during the period of the employee’s leave;
  3. The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
  4. If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier.