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Dept. of Labor's Updated FAQs for Family First Coronavirus Response Act

March 27, 2020

Updated on April 2, 2020 and April 7, 2020

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

Employers should be aware of the following:

Documentation Requirements for Taking Leave

An employee is required to substantiate the need to take FFCRA leave with documentation.

Existing certification requirements under the FMLA remain in effect if an employee is seeking leave for one of the existing qualifying reasons under the FMLA.

Whether the Employee Is Unable to Work or Telework

An employer is unable to work or telework if:

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,

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

Paid sick leave under the Emergency Paid Sick Leave Act:

Expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act:

While an employer may pay employees in excess of FFCRA requirements, the employer cannot receive tax credit for the amounts paid 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:

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 with 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. 

If you have questions about the Department of Labor guidance, please call your Miller Canfield attorney or one of the authors of this alert.

This information is based on the facts and guidance available at the time of publication, and may be subject to change.