More Clarity from the DOL on FFCRA

By Christina M. Reger, Esq.

In case you were too busy reading the 880 pages of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, to catch the Department of Labor Second Questions and Answers, have no fear. I have a summary for you. (Oh and I will get a post out on CARES too — shesh I only have two eyeballs)

OK, let’s jump right in and answer some of your burning questions:

If my employer closed before April 1, can I still get paid sick leave or the extended FMLA benefits?

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.

Other variations of this question are also answered, click here, questions 24-27.

How do I get the exemption for under 50 employees?

Although the DOL has stated that will address this in the regulations, for now, you must document the reason for leave, and maintain records. You should have a FFCRA policy and related forms requesting such leave.

I am assisting business owners with creating these policies and forms to protect their businesses.

How do I count the 500 employees? This question has been asked to me in the context of multi – facilities, and joint employers. Here is the DOL’s response on these questions

A: Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

When am I able to telework under the FFCRA? You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

What does it mean to be unable to work? This answer is lengthy but as it relates to questions I have received, “If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.”

Can I take my leave intermittently? We have been waiting for this answer .. and the answer is my favorite: IT DEPENDS. As the DOL states,

Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. More here.

And, some more answers:

No retroactivity, leave taken before April 1 doesn’t count.

You must count overtime in your calculations of the amount of pay under the sick leave and expanded FMLA provisions.

You can only get the 80 hours of paid leave once. If you take it for school closure and then show symptoms or must self-quarantine, you can not come back to the well for paid sick leave again.

Employment for 30 days means anyone working for the employer after March 2, 2020.

There are also tax implications if you supplement the paid leave with additional pay from your employee’s paid time off bank. You may not be able to get the tax credit. You should consult with your employment attorney and/or tax professional. For more on these answers see questions 31-34, here.

If you need assistance integrating the FFRCA, unemployment and CARES, and how to implement these provisions or prepare policies and forms for your workforce, I am offering discounted half hour and hour consultations. Please email me at

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