Second Set of DOL FAQs Provide More Clarity on Upcoming Federal Paid Sick and Family Leave Obligations

From www.Littler.com

(with permission)

By Alexis Knapp, Jeff Nowak, Sebastian Chilco, Jim Paretti, and Michael Lotito on

March 27, 2020

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On March 26, the U.S. Department of Labor (DOL) released additional FAQs that further explain employer and employee rights and responsibilities under the federal Families First Coronavirus Response Act (FFCRA).  Effective April 1, 2020, the FFCRA will require private employers with 499 or fewer employees, and certain public employers, to provide covered employees emergency paid sick leave and emergency unpaid and paid family leave.

Requesting and Documenting Leave: The DOL explains that employees must support leave requests with appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).

Employees must provide documentation supporting the absence, e.g., a copy of the quarantine or isolation order, or written documentation from a health care provider advising self-quarantine. For employees using leave to care for a child, examples of supporting documentation include a notice 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.

The DOL recommends that employers keep this documentation if they will seek tax credits for providing paid leave.  The DOL points employers to consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the process they will need to follow to claim this tax credit, including any necessary supporting documentation.

What it Means to be “Unable” to Work or Telework: The DOL explains that being “unable” to work or telework means that an employer has work available, but one of the specified paid reasons for leave under the FFCRA prevents the employee from being able to do so.  If an employer offers the ability to work the same number of hours per day but different hours, the employee is able to work and leave is unnecessary unless: 1) the reason for leave prevents the employee from working that schedule; 2) the employee has a qualifying paid sick leave absence; or 3) the employee cannot telework due to the need to care for a child. Note, however, that if an employee can telework while caring for the child, leave is unavailable.

Intermittent and Incremental Use at Employer’s Discretion: The DOL provides generally that employees and employers may agree to intermittent and incremental use of emergency paid sick leave (EPSL) and emergency paid Family and Medical Leave benefits (FMLA+), but then seems to divide the remaining guidance into two situations—whether the employee is teleworking, or working onsite.

For employees who are teleworking, whether taking time off under EPSL or FMLA+, employer and employee may agree to intermittent leave for any of the covered reasons.  But for employees who are working on the employer’s premises, intermittent EPSL is only permitted for employees who are taking leave for school closures or childcare unavailability (again, only if the employer agrees).  Employees taking EPSL for one of the other five reasons under the Act must take such leave in full-day increments (because the intent of the FFCRA is to prevent employees who may be ill or caring for those who are ill from possibly spreading the virus to other individuals in the workplace).

Worksite Closing Forecloses Leave Availability: Per the DOL, if the worksite closes, employees do not receive, or continue to receive, FFCRA leave. It does not matter whether: 1) the closure occurs before or after the law takes effect; 2) an employee is on leave when closure occurs; 3) an employer furloughs an employee; 4) the worksite temporarily closes and the employer says it will reopen in the future. This is true whether the worksite closes for lack of business or per a federal, state, or local directive. If this occurs, an employee’s only recourse is to seek unemployment benefits.

Shelter-in-Place and Business Closure Orders do Not Likely Support the Need for EPSL: Although it did not carve out a specific question for these types of orders, the DOL appears ready to deny EPSL to those covered by these sweeping orders.  In FAQ #27, the DOL notes:

If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

Similarly, in FAQ #28, the DOL states:

If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work.

This language seems to indicate that EPSL is not available to those covered by shelter-in-place and business closure orders at the state and local level (though employees whose child’s school or childcare is unavailable would still be eligible for FMLA+ for that reason alone).

Employees Can Use Leave for Scheduled Hours Only: The DOL clarifies leave is available only for an employee’s scheduled hours. If an employer reduces an employee’s hours, the employee can use leave for remaining scheduled hours only.

Health Coverage Continues During Leave: Per the DOL, existing FMLA standards apply to emergency family leave: employees can continue group health coverage on the same terms; if an employee has family coverage, an employer must maintain such coverage, and employees must generally continue to make regular contributions for their own portion of premiums. For paid sick leave, the DOL says that, per the federal Health Insurance Portability and Accountability Act (HIPAA), employers cannot establish an eligibility rule or set an individual’s premium or contribution rate based on whether the employee is actively at work, “unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.”

Employees Cannot Use Existing Benefits During FFCRA Leave without Employer Consent and Employers Cannot Require Employees to Use Existing Benefits: According to the DOL, employers and employees must agree in order to use FFCRA paid leave and existing employer-provided leave benefits simultaneously and use the latter to “top up” the deficit that may result when FFCRA leave pays out at two-thirds an employee’s regular rate (and that employers cannot require this without the employee’s consent).  While this supplementation may be allowed if employees and employers agree, the DOL reminds employers that the law limits the employer tax credit to the amount of FFCRA leave an employer must provide, so tax relief is unavailable for the “top up.”

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This article only includes general information and IMS is not, by means of this article, rendering any tax, legal or other professional services. This communication should not be relied upon for any decision or action that may have an impact on your business. Prior to taking any action, you should be in contact with your advisor.

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