CORONAVIRUS UPDATE
 

Dept. of Labor Updates FAQs for Family First Coronavirus Response Act

The Department of Labor (“DOL”) has updated its previous guidance in Family First Coronavirus Response Act: Questions and Answers to help employees and employers understand their rights and obligations concerning paid leave provided by the Family First Coronavirus Response Act (“FFCRA”). 

Employers should be aware of the following:

Documentation Requirements for Taking Leave

Employers must require an employee taking FFCRA paid leave to provide appropriate documentation in support of the leave.

  • For paid sick leave under the Emergency Paid Sick Leave Act: Appropriate documentation contains:
    • The employee’s name;
    • The qualifying reason for requesting leave, supported by documents such as a copy of the government quarantine or isolation order or a health care provider’s note advising the employee to self-quarantine;
    • A statement that the employee is unable to work, including telework, because of the qualifying reason; and
    • The date(s) for which leave is requested.
  • For expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act: Appropriate documentation is similar to that needed to support conventional FMLA leave requests. An employee can support the need to take expanded family and medical leave by providing, for example, a notice of closure or unavailability from the school or day care the employee’s child attends, such as a post on a government, school, or day care website; a newspaper publication; or an email from an employee or official of the school or day care.

Supporting documentation should be retained by employers who want to receive tax credit for FFCRA paid leave.  Employers should also check the applicable forms, instructions or procedures provided by the Internal Revenue Service for any requirement of substantiation.

Whether the Employee Is Unable to Work or Telework

An employer is unable to work or telework if:

  • there is work available for the employee which can be performed either at the worksite or by telework; and
  • one of the COVID-19 qualifying reasons identified in the FFCRA prevents the employee from being able to perform that work.

Telework refers to the employee’s ability to perform work from home or from a location other than the employee’s normal workplace.

Whether Leave Can Be Taken Intermittently

For paid sick leave under the Emergency Paid Sick Leave Act: Intermittent leave for a COVID-19 qualifying reason is fairly limited under the guidance. 

It is available only if:

The employer allows intermittent leave under its policies or by specific agreement with the employee, and either of 1) or 2) below apply.

1) the employee needs the leave to care for a child whose school/daycare is unavailable; or

2) the employee is teleworking due to one of the other COVID-19 qualifying reasons and is not able to work the full remote schedule due to the COVID-19 qualifying reason.

The department explained that intermittent leave for an employee who is quarantined, symptomatic, or taking care of a quarantined person, is inconsistent with the purpose of the statute which is to encourage persons to avoid contact and thereby minimize transmission.  Thus, employees who would otherwise be working in person, cannot use intermittent leave.

For expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act: Leave may be taken with the employer’s approval upon a mutually agreeable schedule.

Employers and employees are encouraged to collaborate to achieve maximum flexibility of FFCRA paid leave.  Voluntary arrangements between employers and employees that allow the employee to work intermittently are permissible and supported by the Department of Labor but are not required.

In addition, employers should bear in mind that to the extent the circumstances would require intermittent leave for other FMLA qualifying reasons, then those provisions still apply. 

Closure of Worksite

In the event the employer closes the worksite,

  • before the employee goes out on leave: the employee cannot get paid sick leave and/or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits.
  • while the employee is on paid sick leave or expanded family and medical leave: the employer must pay for any paid sick leave or expanded family and medical sick leave used by the employee before the worksite closure. After the worksite is closed, the employee is no longer entitled to paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits.

If the employer reopens and the employee resumes working, the employee would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Furlough and Reduced Hours for Lack of Work

If an employee is furloughed for lack of work, the employee is not entitled to take paid sick leave or expanded family and medical leave during the furlough period.

If an employee’s work hours are reduced for lack of work, the employee is not entitled to take paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work. 

Continuation of Health Coverage

An employee covered by an employer-provided health plan is entitled to continued group health coverage while taking FFCRA paid leave.

Interaction with Unemployment Insurance Benefits

If an employee receives pay for paid sick leave and/or expanded family and medical leave, ordinarily the employee is not eligible for unemployment insurance.  However, employees should contact their State unemployment insurance agency for specific questions about eligibility, since each state has its own rules and the DOL has recently clarified additional flexibility to the States to extend partial unemployment benefits to workers whose hours or pay have been reduced.

Interaction with Preexisting Paid Leave Entitlements

An employee may not simultaneously use a preexisting paid leave provided by his or her employer while taking FFCRA paid leave, unless the employer allows the employee to supplement payment received from FFCRA paid leave with preexisting paid leave to make up the employee’s normal earnings.  On the other hand, an employer may not require an employee to supplement or adjust payment received from FFCRA paid leave with a preexisting employer-provided paid leave entitlement.

An employer may pay employees in excess of FFCRA requirements, but the employer cannot receive tax credit for the amounts made in excess of FFCRA’s statutory limits. 

Employer as Part of a Multiemployer Collective Bargaining Agreement

As one way to satisfy the obligations under the paid leave requirements of the FFCRA, an employer that is part of a multiemployer collective bargaining agreement may contribute to a multiemployer fund, plan, or other program in accordance with the employer’s existing collective bargaining obligations if:

  • the contributions are based on the amount of FFCRA paid leave entitled by employees based on their work under the multiemployer collective bargaining agreement; and
  • such a fund, plan, or other program must allow employees to secure or obtain their pay for the entitled paid leave provided by the FFCRA.

On a side note, employers should be aware that the Department of Labor has issued a model notice that can be posted in a conspicuous place on the business premise to comply the notice requirements in the FFCRA.  Alternatively, employers can satisfy the posting requirement by emailing or directly mailing this notice to employees, or posting this notice on the employer’s information internal or external website. 

This is part of a series of Miller Canfield COVID-19 alerts providing clients with practical advice on measures they can take to navigate through these challenging times. If you have questions about the Department of Labor guidance, please contact your Miller Canfield attorney or any of the authors of this alert.

 

Contact

Nhan Ho
+1.313.496.7930
ho@millercanfield.com

Brian Schwartz
+1.313.496.7551
schwartzb@millercanfield.com

Megan Norris
+1.313.496.7594
norris@millercanfield.com 

Robert Zielinski
+1.312.460.4216
zielinski@millercanfield.com

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