The DOL has issued several rounds of guidance for FFCRA, more recently the “But For” Test. There have been a lot of questions so we have outlined it here for you.
There are 6 reasons that employees may take paid leave under the Act. We will only focus on the 5 (listed below) that count, because not even the DOL appears to know how to define or use the 6th.
The most important questions when considering if an employee is eligible for either paid leave under FFCRA are:
- Is the employee able to telework?
- Do we have work for the employee – either in office or remote?
Employees can only take leave for one of the 5 reason listed, only if the employer has work for the employee. In the event of business closure, furlough, or lay off, employees are not eligible for paid leave, but unemployment benefits may be available.
One example the DOL has used is of a Coffee shop server that contracted COVID-19, but as a non-essential business or due to lack of customers the business shut down. This employee would not be eligible for paid leave even though they meet one of the requirements. The Coffee shop has no work for them, so regardless of their condition, the business is closed.
An employee must be unable to work due to one of the 5 reasons listed. Simply being scared to come to work does not justify need for the leave. The exception to that would be, a high risk individual or someone over 65 years old, that you could work BUT FOR the executive order or CDC guidelines, they are unable to work or telework. High risk is defined in the executive order and by the CDC.
Leave Reason 1 is that the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19. A Quarantine Order by government needs to be directed to a particular person (those high risk or over 65). Leave is paid at 100% normal rate up to 80 hours.
Reason 2 – is the employee has been advised by a health care provider to self-quarantine related to COVID-19. This doesn’t mean the employee has the virus; the doctor could just be protecting them. You only ask for a statement from the employee and the doctor’s name, at this point, you will not require a doctor’s note and cannot follow up with said doctor. Leave is paid at 100% normal rate up to 80 hours.
Reason 3 – the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. The paid leave is limited to time the employees are unable to work because they are taking steps to get diagnosis. If they can telework and are only waiting for results, they aren’t eligible for paid leave. In the event they are unable to telework, they get paid while waiting for results. Leave is paid at 100% normal rate up to 80 hours.
A symptomatic employee not getting tested would not qualify under #3 but may qualify by doctor’s order under # 2
Reason 4 – Employees is caring for an individual (not necessarily family) subject to an order described in #1 or a self quarantine as described in #2. Leave is paid at 2/3 normal rate up to 80 hours.
Reason 5 – Employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable). DOL has changed/clarified and now, the unavailable child care provider does not need to be someone who is licensed or compensated, they can be family or friends. The employee must certify that no other suitable person is available. An employee wanting to take leave when there is another parent that can watch their children would not be eligible. Leave is paid at 2/3 normal rate up to 80 hours.
Remember, Reason 5 may also qualify your employee for the extra 10 weeks of partially paid leave under the Expanded FMLA. None of the other reasons (1-4) would entitle employees for paid leave under the expanded family medical leave program. (Paid at 2/3 normal rate up to 10 weeks).
Be sure to keep accurate records. You need to ensure the leave you are giving is covered under the law. If not, it may not be available for the tax credit.