The COVID-19 pandemic has disrupted normal working conditions, including workplace attendance. Congress recognized this when it passed the Families First Coronavirus Relief Act (FFCRA) on March 19, 2020, which contained the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Employers who have continuing operations must comply with the FFCRA. The U.S. Department of Labor (DOL) issued temporary regulations that clarify coverage, and the scope and application of leaves, under the FFCRA, which was in effect from April 1, 2020, to Dec. 31, 2020.

As a general matter, the FFCRA applied to employers with fewer than 500 employees. The FFCRA also provided employees with a certain amount of time off at full or partial salary for many reasons tied to COVID-19. As the pandemic continues, it is likely employers will face claims alleging they did not comply with the FFCRA, including:

Claims alleging that they were denied time off under FFCRA despite being eligible

To avoid this type of claim, employers need to familiarize themselves with the FFCRA regulation. They address such critical issues as “Paid Leave Entitlements,” “Employee Eligibility for Leave,” “Employer Coverage,” and “Documentation of Need for Leave.”

A key item in fighting such claims is to have employees support their leave requests through documentation (per the employer’s usual and customary notice requirements, absent unusual circumstances). These can include requesting: employee’s name; dates for which leaves is requested; an oral or written statement that the employee is unable to work because of a qualified reason for leave; and/or further documentation as required by the FFCRA (to support associated business tax credits & IRS tax audits).

If an employee does not give the proper information, notice, and/or documentation, the employer should ask for it.  Notify your employee and give them an opportunity to provide the required information and/or documentation before denying the leave request.

Employers should, as always, make and maintain good records concerning employees.  Particularly records for various leaves of absence.  Employers must separately calculate the use by each employee of each type of leave, noting when they run concurrently and when, for one reason or another, they run separately.

Claims alleging their sick time pay under FFCRA was miscalculated

Employers should create a separate pay category for FFCRA paid sick leaves. This will allow employers to track compliance and tax credit purposes. Additionally, employers should comply with California Labor Code section 226a by ensuring employee wage statements display the new type of FFCRA paid sick leave.

Claims alleging retaliation (terminated for requesting leave under FFCRA)

Employers must enforce the FFRCA consistently across the board. A failure to do so will open employers to claims and lawsuits. As mentioned above, an effective way to counter such claims is keeping good records that support the employer’s actions.

During these uncertain times, employers must mitigate their risks concerning new leave laws like the FFCRA by trying to stay on top of federal, state, and local developments and adopt compliant policies and practices. If your business needs assistance evaluating your risks or whether it is in compliance with the FFCRA, please contact Hackler Flynn & Associates.

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