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UPDATED: New DOL Q&As Help Clarify Unsettled Items in the Families First Coronavirus Response Act UPDATED: New DOL Q&As Help Clarify Unsettled Items in the Families First Coronavirus Response Act

UPDATED: New DOL Q&As Help Clarify Unsettled Items in the Families First Coronavirus Response Act

This article reflected the available information as of its date of publication. As new laws or regulations are passed or the DOL makes changes to its Q&As, this information may no longer be accurate. Please visit our COVID-19 Resource Center for the most up-to-date information.

On March 26, 2020, the Department of Labor added some additional questions and answers to its Q&A document about the leaves required under the Families First Coronavirus Response Act (FFCRA). Although the Q&As are not law, this additional guidance provides employers with clarification on some unsettled items, including what documentation can be required, whether intermittent leave must be provided, and whether a business that is closed due to a stay at home or shelter in place order must still provide paid leave to its employees under the FFCRA. Below is a summary of the new Q&As by subject area.

Unable to Work. The DOL clarified that an employee is only “unable to work” if the employer actually has work for the employee and the employee cannot work, at either the workplace or at home (if permitted by the employer), for a qualifying reason. If the employer and the employee agree the employee can perform his or her work outside of normal work hours (e.g., to accommodate the employee’s needs), then the employee does not need leave unless a covered reason for leave prevents the employee from working the agreed upon schedule.

Effect of Closure/Employee Furloughs/Reduced Hours. A shutdown is a shutdown, no matter the reason or timing. And, according to the Q&A, an employee who is on furlough (or layoff) or whose hours have been reduced fares no different. Be it because of lack of work or a federal, state or local directive, according to the DOL, the analysis of an employee’s entitlement to paid sick leave and/or expanded family and medical leave does not change. Regardless of the date the shutdown or full furlough occurs, the employee holds no FFCRA rights to leave after the closure or full furlough occurs. If the shutdown occurs on or after April 1, 2020 (the effective date of the leave provisions in the FFCRA) and the employee had a qualifying reason to use leave before the shutdown or full furlough, the employee is only entitled to paid sick leave and/or expanded family and medical leave for the time period between April 1, 2020 and the time the employer closed or placed the employee on furlough. The analysis is no different in situations in which an employer reduces an employee’s scheduled hours of work or tells its employees it will reopen sometime in the future. The employee is not eligible for leave to cover time during which the employee has no work. As it relates to the reduced hours, the DOL states, “This is because [the employee is] not prevented from working those hours due to a COVID-19 qualifying reason, even if [the] reduction in hours was somehow related to COVID-19.”

Use of Other Paid Leave to Supplement Leave. An employer may, but is not required, to allow employees to use other paid leave simultaneously with paid FFCRA leave. For example, an employer may choose to allow an employee who is receiving 2/3 of his or her normal earnings from paid sick leave or expanded family and medical leave under the FFCRA to make up the other 1/3 of normal earnings with PTO or vacation pay. At the same time, an employer may not require an employee to supplement paid FFCRA leave with other paid leave.

Voluntary Payments Beyond What Is Required. An employer may choose to pay employees in excess of what FFRCA requires, but no tax credit is available for such voluntary excess payments.

Intermittent Leave. The DOL does not require (but encourages) employers to provide intermittent leave under the FFCRA and explains when employers may allow intermittent leave.
  • Telework. Employees may take intermittent leave under the FFCRA while teleworking if the employer allows, and the employee is unable to telework his or her normal schedule of hours due to a qualifying reason. That intermittent leave can be in any increment, provided the employee and employer agree on it.
  • At the worksite. Employees working at the usual worksite may not take intermittent leave if taking paid sick leave for any of the qualifying reasons related to COVID-19 other than caring for a child because the child’s school or place of care has been closed or is unavailable due to COVID-19 precautions. If childcare is not the reason, leave must be in full-day increments, and the employee must continue to take paid sick leave each day until the employee either: (1) uses the full amount of paid sick leave, or (2) no longer has a qualifying reason for taking paid sick leave. This is consistent with the intent of the FFCRA to provide paid sick leave as necessary to keep employees from spreading the virus.

Employees taking leave to care for a child (whether as paid sick leave or public health emergency leave) and still working on site may take intermittent leave if the employer allows it. For example, (with the employer’s permission) the employee could take paid sick leave on Mondays, Wednesdays, and Fridays to care for his or her child, but work at the normal worksite on Tuesdays and Thursdays. Employers may also agree to intermittent leave for less than a full work day in these circumstances.

Documentation. One recurring question has been whether an employee can be required to provide a certification or other proof of the need for leave. The answer is yes—employers can and should require such documentation. The DOL states that employees must provide, and employers must retain, documentation in support of the reasons for the requested leave, which includes: the employee’s name; qualifying reason for requesting leave; statement that the employee is unable to work, including telework, for that reason; and the date(s) for which leave is requested. It must also include documentation of the reason for leave. For example, for sick leave—a copy of the quarantine or isolation order or written documentation by a health care provider advising the employee to self-quarantine due to COVID-19 concerns; for public health emergency leave—a notice of closure or unavailability from the employee’s child’s school, place of care, or childcare provider. Retention of that documentation is important and necessary for employers who intend to seek tax credits.

Note that all existing certification requirements under the FMLA remain in effect if the leave is for one of the existing qualifying reasons under the FMLA (for example, if an employee seeks FMLA leave for his or her own condition after taking two weeks of emergency paid sick leave).
 

*Update (3/31/2020) Since this article was published, the DOL updated and changed its answers to questions related to required documentation by the employer. Note the following changes:

  • Instead of mandating that employers retain the specific documentation listed above, the DOL states that if the employer intends to claim a tax credit for its payment of the leave, the employer “should” retain appropriate documentation in its records. The exception is that employers “must” retain the notice of closure or other documentation provided by the employee in support of paid sick or expanded family and medical leave. This documentation is needed even during the time period that the employee is taking unpaid leave that runs concurrently with paid sick leave, if the two leaves are for the same reason.
  • Instead of listing out what specific documentation is required, the DOL now defers to the Internal Revenue Service (IRS). (“You should consult the IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any substantiation to be retained to support he credit.”) As of the date of this update, the IRS has not yet provided such forms or instructions for the FFCRA tax credit.
  • Additionally, the DOL states that employers are not required to provide the leave, “if materials sufficient to support the applicable tax credit have not been provided.”
In addressing specifically the expanded FMLA leave, the DOL now states that, if the employer intends to claim a tax credit, the employer “may also” require the employee to provide additional documentation in support of such leave “to the extent permitted under the certification rules for conventional FMLA requests.” For example, “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.” As noted above, the employer must retain that documentation if the employee provides it.

Health Insurance During Leave. As with traditional FMLA, while an employee is on expanded FMLA leave, the employer must continue the employee’s health benefits, as if the employee continued to work. The employer can require the employee to pay the employee portion of the premium during the leave, which would typically occur though a deduction from the pay. If the employee does not return to work at the end of an expanded FMLA leave, the employee may be eligible for continuing coverage under COBRA. An employer must also continue health benefits during Emergency Paid Sick Leave.

Satisfying Paid Leave Requirements With Contributions to a Multiemployer Plan, Fund, or Program. An employer, who is signatory to a multiemployer collective bargaining agreement, may satisfy the paid leave requirements of the FFCRA by making appropriate contributions on the employee's behalf to a fund, plan, or other program under the multiemployer agreement. Such employers may also satisfy FFCRA requirements by providing the paid leave mandated by FFCRA by other means, but in doing so should be cognizant of their obligations under the collective bargaining agreement.

We will continue to monitor future guidance from the DOL and other legislation that may affect employers during this challenging time. If you have questions, please contact Manolis Boulukos, Tami Earnhart, Kayla Ernst, Paul Sweeney, or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
 
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