DOL Answers More Burning Questions and Provides a Poster About Families First Coronavirus Response Act

By Fiona W. Ong - Shawe Rosenthal LLP

March 27, 2020

On March 26, 2020, the Department of Labor updated its Families First Coronavirus Response Act: Questions and Answers to provide more guidance about the paid sick leave and expanded Family and Medical Leave Act (FMLA) requirements under the Families First Coronavirus Response Act (FFCRA). The DOL addressed a number of open issues of significant interest to employers. Additionally, as we mentioned in our March 26, 2020 E-lert, the DOL released the mandatory notice, and it has now followed up with guidance on its posting and distribution.

The FFCRA Poster. The Secretary of Labor has prepared a notice that must be posted in conspicuous places where the employer normally posts other such employment notices, such as break rooms and cafeterias that are regularly accessed by all employees. In an FAQ document on the notice, the DOL states that in light of the focus on teleworking, employers may satisfy the posting requirements by emailing or direct mailing the notice to employees, or by electronically posting the notice on an internal or external website accessible to employees. The notice need not be posted in other languages, although the DOL is working to make that available. It is not acceptable to place the poster in a binder.

Recordkeeping Obligations. The DOL lists the documentation that employers must keep when its employees take paid sick leave or expanded FMLA leave:

- Employee’s name
- Qualifying reason for requesting leave
- A statement that the employee is unable to work or telework because of that reason
- Dates for which leave is requested
- Documentation of the reason for leave. This may include:
        . A copy of the Federal, state or local quarantine or isolation order
        . Written documentation from a health care provider advising the employee to self-quarantine due to COVID-19-related concerns
        . A notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider

These records will be necessary in order to claim the available tax credit for the leave under the FFCRA.

Note that if the employee requires leave beyond the two-week paid sick leave because of their own COVID-19 illness or to care for a family member with COVID-19, and the additional leave qualifies as “regular” FMLA leave (assuming that the illness meets the criteria for a serious health condition under the FMLA), the employee must provide the usual FMLA certifications from a health care provider. This only applies to employers with 50 or more employees and to employees who meet the eligibility requirements for FMLA leave.

Unable to Work or Telework. The DOL explains that telework is work that the employer permits or allows to be performed at home or outside of the normal workplace. Employees receive normal wages for telework; it is not paid leave under the FFCRA. Employees are unable to work, and therefore entitled to leave, if the employer has work available, but the employee is unable to perform the work for one of the specified COVID-19-related reasons.

The DOL further explains that paid leave under the FFCRA is not necessary if there is a change in schedule that allows the employee to work their normal amount of hours. In addition, leave is also not necessary if the employee is able to telework while caring for a child due to the closure of the child’s school or child care.

Intermittent Leave. According to the DOL, employees make take intermittent paid sick leave or expanded FMLA leave only if permitted by the employer, but the DOL encourages collaboration between employers and employees “to achieve flexibility and meet mutual needs.”

Specifically as to teleworking, if the employee is unable to work their normal schedule of hours, the employer may – but is not required to – allow the employee to take paid sick leave and/or expanded FMLA leave on an intermittent basis, in any agreed-upon increment.

As to the use of intermittent leave in the usual workplace, the DOL is less sanguine. The DOL notes that all but one of the reasons for paid sick leave are intended to prevent the employee from spreading infection, which does not comport with leave on an intermittent basis. Thus leave for those reasons can only be taken in full-day increments that continue until the leave is exhausted or there is no longer a reason to take the leave. In the latter case, the employee may take any remaining leave for another qualifying COVID-19-related reason at a later time until December 31, 2020.

The DOL observes that the only reason for which intermittent leave in the usual workplace is possible would be due to the COVID-19-related closure of the child’s school or child care. Again, the use of intermittent leave in this situation would be subject to approval by the employer.

No Leave During Worksite Closure. The DOL makes clear that employees are not entitled to paid sick leave or expanded FMLA leave if the employer closes the worksite, regardless of whether the closure is due to economic conditions or because of a Federal, state, or local government directive (e.g. shut-down or shelter-in-place orders). If the employee is taking leave when the closure occurs, any further right to leave ceases. Even if the closure is temporary, the employee may not take leave during the closure. The employee may, however, be eligible for unemployment insurance benefits (although not if the employee is receiving any other form of paid leave,  whether by employer policy or state/local law).

No Leave During Furlough. Similarly, an employee is not entitled to take paid sick leave or expanded FMLA leave while on furlough due to lack of work, even if the employer remains open. Again, the employee may be eligible for unemployment insurance benefits.

No Leave To Cover Reduced Hours. And if the employer reduces an employee’s scheduled work hours due to lack of work, the employee may not take paid sick leave or expanded FMLA leave to cover the hours that they are no longer scheduled to work, since the reason for the reduction is not due to a listed reason, even though it may have been related to the COVID-19 pandemic.

FFCRA Paid Leave and Unemployment Insurance. The DOL states that employees taking paid sick leave or expanded FMLA leave may not receive unemployment insurance benefits at the same time.

FFCRA Paid Leave and Health Insurance. Employees will be entitled to maintain their existing health coverage while on paid sick leave or expanded FMLA leave. They are responsible for their normal premium contributions while on leave. If they do not return from leave, they may be eligible for health care continuation under the Consolidated Omnibus Budget Reconciliation Act (COBRA) or state mini-COBRA laws.

FFCRA Paid Leave and Preexisting Leave Benefits. The DOL clarifies that employees may not use FFCRA paid sick leave or expanded FMLA leave concurrently with preexisting paid leave, unless the employer agrees (which would be unlikely, as the employee would likely be receiving well more than their normal pay). The employee must choose which leave to take.

The employer may allow – but not require – the employee to use the preexisting paid leave benefit to bridge any difference between FFCRA paid sick leave or expanded FMLA leave and full pay (e.g. when the employee is receiving 2/3 pay to care for an ill or quarantined family member or due to the need to care for a child because of a school/child care closure). Note, however, that the employer will only be entitled to the payroll tax credit for the statutory FFCRA portion of the leave.

The DOL notes that an employer can choose to pay more than they are entitled to under FFCRA – i.e. full pay rather than 2/3 pay to care for an ill family member or a child whose school or child care has closed. However, the employer will only be entitled to the tax credit at the statutory 2/3 amount.

Stay tuned for further updates. The DOL is releasing guidance on an almost daily basis, and has yet to issue the required regulations setting forth the small business waiver or the exemptions for healthcare professionals and emergency responders, among other things. We will continue to inform you of these new developments.