As federal and state governments begin reopening the economy, many employers are beginning to bring back employees from furloughs and lay-offs.  Employers covered by the Families First Coronavirus Response Act (FFCRA) must still provide Paid Sick Leave benefits and Emergency Family and Medical Leave.  Here are a few Q&A's on situations employers might encounter:
1. Does the Families First Coronavirus Response Act (FFCRA) still apply to my rehired employees?

Yes, and this can come up in a few different ways.  For example, if you recall an employee any time before December 31, 2020, and the person indicates that they are unable to return because of one of the qualifying reasons for Emergency Paid Sick Leave benefits or Emergency Family and Medical Leave Act leave under the Families First Coronavirus Response Act (FFCRA), they may be entitled to the Sick Leave benefit or Emergency FMLA benefit at that time.  Need a FFCRA Certification Form? Don't worry, we have created one that will ensure you are gathering the correct information to obtain the tax credit.
2. If we rehire an employee, do they need to work for at least 30 days before becoming eligible for 12 weeks of Emergency FMLA leave (10 weeks of which are paid after 2 weeks of Paid Sick Leave)?

Not necessarily. The FFCRA was amended to provide that if an employee was laid off or otherwise terminated on or after March 1, 2020, and rehired by the employer on or before December 31, 2020, they will be entitled to Emergency FMLA if they had been on the employer's payroll for 30 or more of the 60 calendar days prior to the layoff or termination.
3. If we rehire employees and now we have 500 or more employees, can employees still request Paid Sick Leave or Emergency FMLA Leave?

No. The 500-or-more employee count is a "snapshot" that is calculated at the time Sick Leave or Emergency FMLA leave is requested. Therefore, if an employee requests Paid Sick or Emergency FMLA at a time you have 500 or more employees, they would not be entitled to leave since the FFCRA applies to employers with less than 500 employees.
4. If we hire new employees as part of our return to operations, and they used their FFCRA Sick Leave at their last employer, are they entitled to another 80 hours of FFCRA Sick Leave with our company?

No. The U.S. Department of Labor (DOL) regulations specify that any person is limited to a total of 80 hours of Paid Sick Leave. An employee who has taken all such leave and then changes employers is not entitled to additional FFCRA Sick from his new employer. However, an employee who has taken some, but fewer than 80 hours of FFCRA Sick Leave and then changes employers is entitled to the remaining portion of such leave from his new employer, and only if the new employer is covered by the FFCRA.
However, no similar rule limits the Emergency FMLA expansion. This suggests that an individual's maximum entitlement to 12 weeks of paid Emergency FMLA leave (10 weeks of which is paid at 2/3) does not apply across all covered employers, but at each place of employment, just like entitlement under traditional FMLA.
5. We are "ramping back up" and have employees returning to the worksite. However, some employees are saying they want to continue to work from home because they are scared to be in a work environment. Do we have to let them work from home?

Generally, you are not required to allow employees to work from home. Even the DOL regulations to the FFCRA state that telework does not have to be provided unless an employer agrees to allow it. If you otherwise have work for the employee to perform at the worksite, the employee's fear of returning to the worksite would generally not be a qualifying reason under Paid Sick Leave.
However, if the employee is in a "vulnerable" category (due to age or medical condition), she might be eligible for FFCRA Sick Leave depending on the specifics of the situation and whether she has been advised by a health care provider to isolate or quarantine because of her vulnerability. In addition, mental disabilities (e.g., severe anxiety) or similar issues could raise potential Americans with Disabilities Act (ADA) issues and necessitate the "interactive dialogue" regarding reasonable accommodations, including potentially allowing the employee to continue working from home. If needed, we have created an ADA Recommendations Form (for the physician to fill out) to assist you in determining whether the employee is a qualified individual with a disability who needs a reasonable accommodation to perform the essential functions of the job.   
6. We are "ramping back up" and having employees again report to the worksite. However, while operations were closed, an employee requested pay for FFCRA leave. Can we choose not to bring that employee back?

No, if the reason you do not want to bring him back is because he wanted to be paid under the FFCRA. Although the employee was not qualified for FFCRA leaves while furloughed due to lack of work, refusing to bring an employee back based on their request for FFCRA leave could be viewed as discriminatory and retaliatory. The decision on who to have return to work should not be based on your knowledge of an employee's request or potential need for FFCRA leave.
7. School is almost out but summer camps are closed.  Can employees still request FFCRA Sick Leave or Emergency FMLA leave over the summer for school/childcare closures?

If the employee has already exhausted FFCRA Sick and FMLA, no.  If the employee has not exhausted their time, yes.  Under both the FFCRA Sick and FMLA entitlements, employees can take leave to care for a child whose school or place of childcare closes, or whose childcare provider is unavailable, due to COVID-19. In evident recognition that nationwide pandemic precautions may extend into summer, the DOL regulations specify that a "place of childcare" can include summer camps and summer enrichment programs However, documentation will still be required, such as notification of the summer camp closure.
Have questions or need forms relating to the FFCRA, ADA, or FMLA? Don't worry, we're here to help! 
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