On April 1, 2020, the DOL issued temporary regulations implementing the FFCRA.  In conjunction with questions and answers issued by the IRS related to the documentation that employers are required to maintain to claim the tax credits under the FFCRA, employers now have clearer direction as to what absences will qualify for the paid leave, and subsequent tax credits, under the FFCRA.  The regulations, along with explanatory question and answer sections and the required poster, are available at www.dol.gov.

While the qualifying reasons for paid leave under the FFCRA have not changed, the DOL has provided clarification that employees cannot self-diagnose or self-quarantine without affirmatively seeking a diagnosis or order to quarantine from a medical professional.  Please note, however, that exhibiting symptoms including fever, dry cough, shortness of breath, or any other symptom of COVID-19 as identified by the CDC and affirmatively seeking a medical diagnosis does qualify an employee for paid sick leave.  As a result, if an employee is experiencing symptoms and made an appointment for a test to determine whether they have COVID-19 but has to wait for an extended period of time for the appointment, the time spent waiting for the appointment would qualify.  Similarly, if an employee contacts a medical provider to make an appointment, describes their symptoms, and is instead told to self-isolate by the medical professional, they would then qualify under the self-isolation provision for paid leave under the FFCRA.

Another important clarification in the rulemaking is that employees are not eligible for paid leave under the FFCRA, and employers are not eligible for the tax credits, if the employer does not have work for the employee to perform, either due to a government order temporarily closing the business or due to a general slow-down caused by COVID-19.  As a result, employers seeking to keep employees in a paid status during a government-mandated shutdown will need to look to other programs to fund their payroll costs, such as a Paycheck Protection Program loan or an EIDL loan.

If you have any questions, please contact our Employment & Labor Law practice group.

Visit our COVID-19 Resource Page for more updates.