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Employers Have More Questions, The Department of Labor Has More Answers: DOL Provides Second Guidance Regarding the Families First Coronavirus Relief Act

March 27, 2020

US Department of Labor

The U.S. Department of Labor seems to be working around the clock these days, and late on March 26 it added to its Q&As regarding the Families First Coronavirus Relief Act (“FFCRA”). In its responses to questions 15-37, the DOL examined issues such as teleworking, intermittent leave, and furloughs. The FFCRA goes into effect on April 1, 2020, so this additional guidance is welcome and just in the nick-of-time. Here are some highlights:

Teleworking Employees Are Not On Leave

An employee who can telework, even if it is not on the same schedule as normal (for example, an employee who needs to work early in the morning before the employee’s children wake up) is considered able to work and is not entitled to leave, so long as the employer agrees to the schedule. If an employer permits the employee to telework and the employee cannot do so for a qualifying reason, however, the employee is entitled to paid sick leave or expanded family and medical leave depending on the qualifying reason. (Remember that employees may take two weeks of paid sick leave for several COVID-19 related reasons and up to an additional 10 weeks of expanded family and medical leave to care for children who are at home due to school and child care closures. For more information, see our previous alert.)

Intermittent Leave Only is Available to Care for Children

Employers also may agree to allow employees to take intermittent leave while otherwise teleworking if the employees are unable to work the their normally scheduled hours. This leave can be taken in any increment agreed to by the employer and employee.

In contrast, employees who are still going into their physical places of work can only take intermittent paid sick leave to care for children who are at home, and only if their employer agrees. For any other qualifying reason, the employee must take all of their FFCRA paid sick leave at the same time in order to stop the spread of COVID-19. For expanded family and medical leave, these employees can take intermittent leave to care for children at home with the permission of their employers.

Worksite Closures, Furloughs, and Reduced Hours Do Not Create An Obligation for Employers to Pay Leave Benefits

Employers who have closed worksites and stopped paying employees are not obligated to pay those employees leave benefits. This is true whether the worksite closed before or after April 1. If the worksite closed while the employee was on leave, the employer must pay the employee’s benefits up until the date the worksite closed, at which point the obligation to pay leave benefits ends. Employers who furlough employees or reduce their hours also have no obligation to pay those furloughed employees’ leave benefits.

Employees Cannot Stack FFCRA Leave With Unemployment Benefits or PTO

Employees may not “double dip” their benefits. If they are collecting FFRCA paid sick leave or expanded family and medical leave, they are not eligible for unemployment insurance. They may be eligible for partial benefits if their hours or pay have been reduced, but this will vary by state. Employers with questions about a specific state’s COVID-19 unemployment insurance response should contact a Dykema Labor and Employment attorney.

Further, if an employee is eligible for FFCRA paid sick leave or expanded family and medical leave as well as employer provided paid time off, the employee must choose which one to take. However, if the employee is receiving two-thirds of his or her pay under the FFCRA, the employer could allow the employee to top off their leave with PTO time in order to receive full pay. On the flip side, an employer may not supplement the pay mandated by the FFCRA with an employee’s PTO time without the employee’s permission. Finally, employers who choose to allow employees to supplement in this way should keep in mind that they will only receive a tax credit for the amount of leave they are obligated to pay under the FFCRA, and then only up to the dollar caps in the FFCRA.

Employers Must Require Documentation From Employees For Paid Sick Leave and Expanded Family Medical Leave

The DOL instructs employers to require employees to provide documentation in support of why they need paid sick leave under the FFCRA. Such documentation should include: the employee’s name, qualifying reason for requesting the leave, statement that the employee is unable to work (or telework), and the date(s) the leave is requested. Documentation in support of the qualifying reason will also be necessary. This may be a copy of the Federal, State, or local quarantine or isolation order, written documentation from a healthcare provider instructing the employee to self-quarantine, or a copy of a notice from government, school, or day care website stating that the school or daycare is closed. Employees requesting expanded family and medical leave to care for children at home must provide documentation as well. Employers who plan to seek a tax credit to offset the cost of these leaves should retain all documentation in their records.

The DOL’s updated guidance answers many questions employers have had since the FFRCA was passed, but many questions remain. Stay tuned for more updates as the DOL releases more guidance. Meanwhile, contact any attorney in Dykema’s Labor & Employment Law Practice Group for further counsel as to how to comply with this new law.

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