As more and more Texas businesses re-open and adjust to the new normal, it is easy to forget that COVID-19-specific orders and statutes, like the Families First Coronavirus Response Act (FFCRA), still apply.  The FFRCA is effective through the end of 2020. 

Under certain circumstances, the FFCRA requires an employer to continue some or all of the employee’s wages through Emergency Paid Leave or Extended Leave. For more specifics about paid leave and extended family leave under FFCRA, please refer to our previous post on this topic.

Here are some further considerations to remember about FFCRA, as follows.

1. Under FFCRA, an employee remains “eligible” for Emergency Paid Leave or Extended Leave benefits, if applicable, even though the business is allowed to re-open. While shelter in place orders (which were considered “quarantine orders”) have expired, other provisions of FFCRA may apply.  

2. Since Governor Abbott has suspended classroom schooling for the remainder of the 2019-2020 academic year, employers should consider continuing to allow employees to work remotely through the end of that academic year. Teleworking can also be considered an accommodation under the Americans with Disability Act (ADA).  For those employees whose position cannot be completed remotely while the business is open and/or cannot work remotely because of the nature of the job, teleworking may simply not be an option. 

If teleworking, even if part-time, is feasible, it should be discussed with the employee since FFCRA permits intermittent leave. This situation may only be applicable when caring for a child whose school or day care is not available. If the employee and employer discuss intermittent leave, it can be allowed on a case-by-case basis, though will require an agreement between employee and employer with a clear and mutual understanding between employee and employer, and careful and accurate tracking of time.

3. The benefits available under the FFCRA are not applicable to independent contractors. This presents the repeated question – who is my employee? 

FFCRA uses the definition of “employee” in the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). The FMLA uses the FLSA definition.  Under the FLSA, the determination of whether someone is a contractor or employee is based on the economic realities test. This is a different test than the ones used for determining whether someone is an employee under tax, unemployment, workers’ compensation, and many other federal and state laws.

The economic realities test generally looks at the following factors.

• • The extent to which the services rendered are an integral part of the principal’s business.
  • The permanency of the relationship.
  • The amount of the alleged contractor’s investment in facilities and equipment.
  • The nature and degree of control by the principal.
  • The alleged contractor’s opportunities for profit and loss.
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  • The degree of independent business organization and operation.

It is important to properly classify employees and independent contractors in terms of benefits appliable under the FFCRA and to document that classification. For further clarification and to make sure your classification is accurate, it is advisable to review the Department of Labor’s website and the Texas Labor Code.

4. The benefits available under the FFCRA are not applicable to laid-off or furloughed employees. Although ‘furloughed’ is a term of art, it usually is used for an employee who is on a temporary leave of absence with a date certain of return and may be still receiving an employer-offered medical or health benefits. If, however, the laid-off employee or furloughed employee returns to work (whether full or part-time), the benefits under the FFCRA are immediately available to that employee as long as the employee worked 30 of the last 60 days before termination. 

It is always a best practice to consult with a human resources manager and/or legal counsel regarding any employment-related issues, including the applicability of FFCRA.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have. 

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