Over the weekend, the U.S. Department of Labor (DOL) updated its Q&A page for the Families First Coronavirus Response Act (FFCRA) ahead of the act’s April 1, 2020 effective date. This guidance provides employers with additional insight about how the DOL will enforce the FFCRA’s expanded Families and Medical Leave Act (FMLA) and paid sick leave requirements. In this second piece of our three-part series, here is our look at the key points the new guidance provides.
- Part 1: “Department of Labor releases Q&A regarding Families First Coronavirus Response Act and mandatory posters“
- Part 2: “Department of Labor’s Q&A page provides new information about enforcement of Families First Coronavirus Response Act“
Eighty total hours of paid sick leave
Paid sick leave taken under the FFCRA is capped at two weeks – or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period). For example, if a full-time employee takes 80 hours of paid sick leave to self-quarantine because of a health provider’s order, the employee is not entitled to later take an additional 80 hours of paid sick leave to care for a loved one who has been ordered by a healthcare provider to self-quarantine.
Interaction between expanded FMLA and paid sick leave
The FFCRA offers expanded, paid FMLA for an employee who must miss work and cannot telework because the employee is caring for his or her child who is without school or childcare because of COVID-19. An employee is entitled up to twelve weeks of leave for this reason, but the first ten days (two weeks) of expanded FMLA leave may be unpaid. The guidance makes clear that an employee may use paid sick leave for the first ten, unpaid days of FMLA leave to obtain a total of twelve weeks of paid leave. Alternatively, an employee could use any other existing vacation, personal, medical or sick leave offered under the employer’s policy to cover the initial ten days of unpaid leave.
When an employee takes paid sick leave under the FFCRA, an employer must require the employee to provide appropriate documentation in support of the reason for leave, including:
- the employee’s name;
- the qualifying reason for requesting leave;
- a statement that the employee is unable to work, including telework for that reason; and
- the date(s) for which leave is requested.
Documentation of the reason for the leave will also be necessary, such as a copy of the federal, state, or local quarantine order applicable to the employee or written documentation from a health care provider advising the employee to self-quarantine.
If an employee takes expanded FMLA leave to care for his or her child who is without school or childcare because of COVID-19, the employee must provide appropriate documentation of the need for leave such as:
- a notice that has been posted on a government, school, or day care website;
- a newspaper publication; or
- an email from an employee or official of the school, place of care, or child care provider.
The DOL provides that, if an employer plans to claim a tax credit for paid sick leave or expanded FMLA offered under the FFCRA, retaining copies of these documents is essential.
Telework and eligibility for leave benefits
The DOL guidance makes clear that an employee is only entitled to take paid sick leave or expanded FMLA if the employee is unable to work at their normal worksite or telework because of qualifying reason related to COVID-19.
If an employee who is assigned to telework later becomes unable to telework because of a qualifying reason related to COVID-19, the employee would be entitled to paid sick leave and potentially expanded FMLA leave.
Taking paid sick leave or expanded FMLA leave intermittently
Whether or not an employee may take paid sick leave or expanded FMLA leave intermittently depends on if the employee is teleworking or assigned to work at a worksite.
If an employee who is teleworking is unable to work their normal work schedule because of a qualifying reason under the FFCRA’s paid sick leave provisions, the employee may take paid sick leave intermittently. Similarly, if an employee’s normal teleworking schedule would interfere with the employee’s need to care for his or her child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19-related reasons, the employee could take expanded FMLA intermittently while teleworking. Intermittent leave may be taken in any increment, provided that the employer and the employee agree.
When an employee must work at his or her usual worksite, paid sick leave cannot be taken intermittently if the leave is taken because:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine because of COVID-19 related concerns;
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- the employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine because of COVID-19 related concerns; or
- the employee is experiencing any substantially similar condition specified by the Secretary of Health and Human Services.
Once an employee begins taking paid sick leave for one of these qualifying reasons, the employee must continue to take paid sick leave each day until either (1) the full amount of paid sick leave is exhausted or (2) there is no longer a qualifying reason for taking paid sick leave.
However, if an employee assigned to a worksite requests to use paid sick leave or expanded FMLA leave intermittently to care for his or her child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19 related reasons, intermittent use is permissible as long as the employer and employee agree.
Business closure, furloughs and reduced hours
If an employer closes its worksite before April 1, 2020, sends its employees home and stops paying them, its employees will not be eligible for paid sick leave or expanded FMLA leave. This is true whether the employer closes its worksite for lack of business or because it is required to because of a federal, state or local directive.
If an employer closes after the effective date of April 1, 2020, employees who have not requested paid sick leave or expanded FMLA leave before the business closure are not entitled to any pay for these benefits but may be eligible for unemployment insurance benefits. This is true even if the business plans to reopen at some later date in the future, and regardless of whether the business closed because of a lack of business or if it was required to close because of a federal, state, or local directive. Furthermore, for closures after April 1, 2020, employees who are on paid sick leave or expanded FMLA leave when the business closes must be paid for any paid sick leave or expanded FMLA leave taken before the business closure.
If an employer furloughs its employees because it does not have work or business for them, its employees are not entitled to take paid sick leave or expanded FMLA leave. These employees may however be eligible for unemployment compensation.
If an employer reduces work hours for its employees because it does not have work for its employees to perform, its employees may not use paid sick leave or expanded FMLA leave for the hours they are no longer scheduled to work.
The DOL guidance makes clear that, in most circumstances, an employee may not collect unemployment insurance benefits for time in which the employee received pay for paid sick leave and/or expanded FMLA leave. However, state law varies, so the DOL recommends looking to state law for additional guidance.
If an employee takes paid sick leave, the employer must continue health coverage. If an employee takes expanded FMLA leave, the employee is entitled to continue group health coverage during the leave period on the same terms as if the employee continued to work. The employee must continue to make any normal contributions to the cost of health coverage.
If an employee does not return to work after taking expanded FMLA leave, the employee may be able to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
Supplementing or adjusting pay mandated under the FFCRA
An employer may supplement or adjust the pay mandated under the FFCRA with paid leave offered under the employer’s policies if an employee chooses to use existing leave provided by the employer. However, an employer is not obligated to permit an employee to use existing paid leave to supplement the amount an employee receives from paid sick leave or expanded FMLA leave. Additionally, the employer will not obtain tax credit for these supplemental amounts. Therefore, any amount paid in excess of FFCRA requirements is not eligible for tax credit.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.