DOL Issues Second Round of FAQ Guidance on Emergency Paid Sick Leave & Public Health Emergency FMLA

On March 26, 2020, the United States Department of Labor (DOL) issued a second round of FAQ guidance on the Families First Coronavirus Response Act (Act), which includes provisions for emergency paid sick leave and public health emergency leave under the Family and Medical Leave Act.  

The DOL updated the guidance by adding FAQs #15 through #37, which resolve important questions on how employers should administer emergency paid sick leave and public emergency FMLA leave.  The updated guidance can be found here.  

This update provides an overview of some of the newest compliance answers provided by the DOL before the Act becomes effective on April 1, 2020.  The guidance appears employer friendly in that it limits the opportunities under which employees may use emergency sick leave or public health emergency FMLA leave.  

Are employees “furloughed” (e.g., placed in unpaid status) due to a lack of work on or after April 1, 2020 (the effective date of the Act) eligible for emergency sick leave or public health emergency FMLA leave?  No.  Employees “furloughed” (e.g., placed in an unpaid status) due to a lack of work or business are not entitled to emergency sick leave or public health emergency FMLA leave.  Instead, they may be eligible for unemployment benefits under state and federal law.  

If employees can’t work because the employer closes a worksite or ceases operations on or after April 1, 2020 (the effective date of the Act), are employees affected by the closure or cessation entitled to emergency sick leave or public health emergency FMLA leave?  No.  As of the date an employer closes a worksite or ceases operations, which results in employees being unable to work in any capacity, employees are no longer entitled to emergency sick leave or public emergency FMLA leave.  This is true even where the employer closed the worksite or ceased operations due to a public health order under local, state or federal law.  

What if the employer promises to reopen the worksite sometime in the future?  Does the employer have to provide employees who can’t work due to the closure emergency sick leave or public health emergency FMLA leave while the worksite is closed?  No, not while the employer’s worksite is closed.  If the employer closes the worksite, even for a short period of time, employees are not entitled to emergency sick leave or public health emergency FMLA leave.

Are employees who keep working with reduced work hours eligible to take emergency sick leave or public health emergency FMLA leave? No.  If the employer reduced employee work hours because it does not have work for the employee to perform, the employee may not use emergency sick leave or public health emergency FMLA leave for the hours they are no longer scheduled to work.  This is because the employee was not prevented from working the hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.

Are employers required to supplement pay under the Act with pay that an employee may be eligible to take under Company policy?  No.  Employers are not required to permit an employee to use existing paid leave to supplement the amount an employee receives from emergency sick leave or public health emergency FMLA leave.  The employer could choose to supplement if the employer and the employee agree to do so.  

What documentation should the employer require from the employee and what records should it keep when an employee requests emergency sick leave or public emergency FMLA leave?  For benefits under the Act, the DOL advises employers to require “appropriate documentation” identifying the reason for requesting leave, a statement the employee is unable to work (or telework) for that reason and the date(s) for which leave is requested.  The DOL also advises employers to consult Internal Revenue Service applicable forms, instructions and information to determine what records must be retained to receive a tax credit for any pay provided to eligible employees under the Act.  

Can emergency sick leave be taken on an intermittent basis? It depends.  Unless employees are teleworking, emergency sick leave must be taken in full-day increments.  This limit is imposed by the DOL because the intent of the Act is to provide paid sick leave as necessary to prevent employees from spreading the virus to others.  Employees who are teleworking may be permitted to take emergency sick leave on an intermittent basis if the employer agrees to allow intermittent use.  

Can public health emergency FMLA leave be taken on an intermittent basis? Yes, but only if the employer agrees to allow intermittent use.  

We will be discussing this new guidance and other new developments at our March 31 webinar.  To register, click here.  For additional COVID-19 guidance and resources, please visit our website at www.kasperfrank.com.  You can also follow us on Twitter at @kasperfrankllp or Facebook at Kasper & Frank LLP.