FFCRA guidance for school districts as employers
Under the Families First Coronavirus Response Act (FFCRA), which President Trump signed into law on March 18, employers must provide employees with paid sick leave or expanded FMLA leave for reasons related to COVID-19. The U.S. Department of Labor’s Wage and Hour Division (WHD) administers and enforces the new law.
To help FFCRA-covered employers, including school districts, get up to speed on its ins and outs, WHD has offered up several pieces of guidance, which are highlighted below.
Memo for Regional Administrators, Deputy Regional Administrators, Directors of Enforcement, District Directors, Field Assistance Bulletin No. 2020-1, 120 LRP 11210 (WHD 03/24/20)
WHD won’t begin enforcing the FFCRA’s provisions until after April 17. However, during the current grace period, districts must make reasonable, good faith efforts to comply with the act. WHD spelled out that prior to the enforcement period kicking in, it will be looking at whether employers willfully violated the new law and whether they worked to remedy problems.
To fall within the pre-April 18 protections, WHD specified that “all of the following facts” must be present: 1) the employer remedied any violations, including by making all affected employees whole as soon as practicable; 2) the violations of the act were not “willful” in the sense that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited”; and 3) WHD received a written commitment from the employer to comply with the act in the future. If WHD doesn’t find these facts, it “reserves its right to exercise its enforcement authority.”
Families First Coronavirus Response Act: Employer Paid Leave Requirements, 120 LRP 11206 (WHD 03/26/20)
The FFCRA requires employers to provide up to 80 hours of paid sick leave: 1) at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined or experiencing COVID-19 symptoms and seeking a medical diagnosis; or 2) at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. The act also provides up to an additional 10 weeks of paid expanded FMLA at two-thirds the employee’s regular rate of pay where the employee is unable to work due to a need for leave to care for a child whose school or child care provider is closed or unavailable for coronavirus-related reasons.
Families First Coronavirus Response: Q & A, 120 LRP 11208 (WHD 03/26/20)
When an employee seeks to invoke provisions of the FFCRA, the act provides for an initial two weeks of paid leave followed by the potential for an additional 10 weeks at two-thirds pay. However, the additional 10 weeks is only available for employees to care for a child whose school or place of care is closed or if the childcare provider is unavailable due to coronavirus-related reasons.
In terms of documentation, WHD advised that employers require employees to provide: the employee’s name; qualifying reason for requesting leave; statement that the employee is unable to work, including telework, for that reason; and the dates for which leave is requested. Documentation of the reason for leave will also be necessary and should include the source of any quarantine or isolation order or the name of the health care provider who has advised the employee to self-quarantine. For example, documentation may include a copy of the federal, state, or local quarantine or isolation order or written documentation by a health care provider advising the employee to self-quarantine.
COVID-19 and the FMLA, 120 LRP 11204 (WHD 03/26/20)
In a question-and-answer document, WHD spelled out basic FMLA requirements employers may consider during the COVID-19 outbreak. Using “pandemic influenza” as the template for addressing coronavirus, WHD reminded employers that FMLA-eligible employees must be provided with up to 12 weeks of unpaid, job-protected leave during a 12-month period for a serious health condition or to care for a family member with a serious health condition. WHD also looked to Equal Employment Opportunity Commission guidance to inform employers that it is acceptable to exclude an employee with a disability from the workplace if the employee poses a direct threat under the ADA. The EEOC has said in Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, EEOC-NVTA-2009-3 (EEOC 03/21/20), that as of March 2020, the COVID-19 pandemic meets the direct threat standard.
Frank Ferreri is a legal editor at LRP Media Group, publisher of District Administration.