DOL Issues Further Guidance On New Employee Paid Leave Rights
Following closely on the heels of the recently enacted Families First Coronavirus Response Act (the “FFCRA”), which established new paid leave protections for many U.S. workers affected by the COVID-19 pandemic, the U.S. Department of Labor (“DOL”) has moved quickly to address some important issues under the FFCRA.
Last Friday, the DOL released a list of frequently asked questions (“FAQs”) and answers, focused on the nuts and bolts of the FFCRA’s paid leave provisions. Among other things, the FAQs provide clarification related to documentation, intermittent leave, furloughs, and the interaction between paid sick and family/medical leave and other types of paid leave.
Along with guidance issued by the DOL a few days earlier, the FAQs offer valuable assistance for employers seeking to understand how to comply with the FFCRA’s new mandates.
Summary Of FFCRA
As detailed in a previous e-alert, the FFCRA provides for two distinct types of paid leave for certain employees affected by COVID-19.
First, an employee may take up to two weeks of paid sick leave, at his or her regular rate of pay (subject to a $511/day maximum), if the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; OR up to two weeks of paid sick leave, at two-thirds of his or her regular rate of pay (subject to a $200/day maximum), if the employee is unable to work due to a need to care for an individual subject to quarantine, to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19, or for another substantially similar condition.
Second, an employee who has worked for his or her employer for at least 30 days may take up to twelve weeks of paid family/medical leave, at two-thirds of his or her regular rate of pay (subject to a $200/day maximum), if the employee is unable to work due to a need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
These provisions of the FFCRA apply to all private sector employers with fewer than 500 employees, though an employer with fewer than 50 employees may apply for an exemption from the leave requirements if the employer believes that adhering to those provisions would jeopardize the viability of its business. Funds paid to employees under these programs are refundable to the employer via federal tax credits and/or direct payments.
DOL’s New Guidance
With that backdrop, key points addressed in the DOL’s FAQs include the following:
Definition of “Unable to Work”
• An employee is considered “unable to work” if the employer has work for the employee to perform – either at the employee’s normal worksite or by telecommuting – and a COVID-19-qualifying reason (as specified in the FFCRA) prevents the employee from being able to perform that work.
• With his or her employer’s agreement, an employee who is working remotely and is unable to work his or her full schedule due to a FFCRA-qualifying reason may take intermittent leave. Intermittent leave may be taken in any agreed-upon increment. For example, if the employer and the employee agree on 90-minute increments, the employee could work from 1:00 p.m. to 2:30 p.m., take leave from 2:30 p.m. to 4:00 p.m., and then resume working. The DOL encourages employers and employees to work together to facilitate such flexible arrangements.
• If the employer agrees, an employee working at his or her usual location may take paid sick or family/medical leave at the worksite to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19-related reasons. While employers are not required to provide intermittent leave under these circumstances, the DOL encourages employers to do so.
• By contrast, intermittent leave from on-site work (as opposed to telework) is not available for other events covered by the FFCRA (e.g., being subject to a quarantine or caring for an individual who is quarantined).
Workplace Closures, Furloughed Employees, Reductions in Hours
• If an employee’s worksite closes on or after the effective date of the FFCRA (April 1, 2020), and the employee has not yet begun paid sick or family/medical leave, the employee is not entitled to paid leave under the FFCRA but may be entitled to unemployment benefits under state law.
• If an employee’s worksite is shut down while the employee is on paid sick or family/medical leave, the employee is entitled to paid leave only for the time period before the worksite closed.
• Employees who are furloughed due to lack of work while their place of employment remains open are not entitled to paid sick or family/medical leave under the FFCRA, but may be entitled to unemployment benefits pursuant to state law.
• Similarly, an employee whose hours are reduced because the employer does not have enough work is not entitled to paid leave under the FFCRA, but may be entitled to partial unemployment benefits under state law.
• Employees may not collect unemployment benefits for the same time period for which they are receiving paid sick or family/medical leave under the FFCRA.
Interaction With Other Employer Policies
• An employee receiving group health insurance coverage through his or her employer is entitled to continue that coverage during paid sick or family/medical leave under the FFCRA. This is true for both individual and family plans. Employers may require employees to continue making their normal premium contributions.
• If an employee is entitled to take FFCRA leave as well as some other type of paid leave provided by the employer, the employee must choose which of those leave benefits to use for a particular time period, unless the employee asks to supplement FFCRA leave with other paid leave and the employer agrees to do so. For example, if an employee is receiving two-thirds of his or her normal earnings from paid sick leave under the FFCRA, and the employer permits it, the employee may use accrued time under the employer’s preexisting paid sick time program to cover the remaining one-third of his or her usual earnings.
• Employers must retain appropriate documentation (as specified in applicable IRS forms and instructions) in order to be eligible for reimbursement for paid FFCRA leave taken by their
employees. Employers may require employees to provide appropriate information and may refuse to provide leave if an employee does not do so.
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In addition to the FAQs and its earlier guidance, the DOL plans to release official regulations interpreting the FFCRA. Those regulations may clarify some other important issues that have not yet been addressed – for example, how a business with fewer than fifty employees can apply for an exemption if it believes that providing paid FFCRA leave would jeopardize its survival.
SHPC is continuing to closely track developments under the FFCRA, and we will provide additional updates as they become available. In the meantime, if you have questions about your organization’s responsibilities under the new law, please feel free to contact one of our experienced employment attorneys.