Dept. of Labor Issues 2nd Set of FAQs Related to Families First Coronavirus Response Act

The Department of Labor (DOL), earlier today, issued a set of 37 FAQs regarding the Families First Coronavirus Response Act, which attempts to address additional concerns about this new statute and these new leaves.  

The DOL FAQs can be found by clicking on the link below or copy and paste this link in your browser: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Below are some highlights of the document:

• This guidance again refers to regulations being released in the near future but a date has not announced.
• In Ohio, many companies have been required to close in accordance with the State of Ohio Department of Health Stay-At-Home Order, dated March 22, 2020. Although the DOL did not have a specific FAQ directly on point, the DOL appears to deny EPSL to those covered by order such as the one in effect in Ohio.  In FAQ #27, the DOL notes:

If prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

Similarly, in FAQ #28, the DOL states:

If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work.

The DOL seems to indicate that EPSL is not available to those covered by business closure orders at the state and local level (though employees whose child’s school or childcare is unavailable would still be eligible for EMFLA for that reason).

• Employers are allowed to require and employees must support their leave requests with the appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave dates.  You can require your employees to provide, among other things, a copy of the quarantine or isolation order or documentation from a doctor advising self-quarantine. In fact, the DOL actually linked to its FMLA Serious Medical Condition Certification guidance, which was a surprise.  For childcare leaves, you can request supporting documentation establishing the school or daycare center as closed.  The DOL advises that employers (1) keep this documentation if the employer plans to seek tax credits for the paid leave and (2) pay attention to IRS guidance on the process employers will need to follow and the documentation they will need to produce.  The DOL states in FAQ #16:

What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?

You are entitled to paid sick leave if you are unable to work or telework due to a qualifying reason related to COVID-19. You must provide to your employer documentation in support of the reasons for your paid sick leave. These documents may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19.

You must provide to your employer documentation in support of your expanded family and medical leave is taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this requirement may be satisfied with a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or daycare website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

This guidance and the documentation employers are permitted to require should help to curb potential misuse.

• Intermittent leave is available. Employers and employees can agree to intermittent use of EPSL and EFMLA.  The DOL guidance seems to divide the availability of such leave into two distinct categories – employees who are working from home and employees working at a company’s facility.  Whether EPSL or EFMLA, if an employee is working from home, companies and its employees can agree to intermittent leave for any of the covered reasons.  However, intermittent EPSL is only permitted for employees who are taking leave for school closures or childcare unavailability when the company agrees and the employee is working on site.  Employees taking EPSL for one of the other reasons can only take leave in full-day increments.
• If a company’s facility closes, employees are not eligible to receive or continue to receive, EPSL or EFMLA. It does not matter whether, among other reasons, the closure occurs before or after April 1 or an employee is on leave when the closure occurs. According to FAQs #24: 

24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your state workforce agency or State unemployment insurance office for specific questions about your eligibility.

• The DOL clarifies that leave is available only for an employee’s scheduled hours. If an employer reduces an employee’s hours, the employee can use leave for the remaining scheduled hours only. In other words, EPSL and EFMLA cannot be used to get paid wages that would not have been available to an employee if he or she was working.
• While employers can agree to allow the use of PTO to cover the “pay gap” while on these leaves, employers cannot require it.   The DOL states that employers and employees must agree in order to use EPSL or EFMLA at the same time as existing PTO.   As to the financial ramifications of this decision, please remember that the tax credit will be limited to the amount of EPSL or EFMLA leave an employer must provide, so tax relief is unavailable for the additional PTO used to close the pay gap.

If you have any questions, please contact Attorney Michael J. Bogdan (mbogdan@www.kwgd.com) at 330-497-700 or any KWGD Labor and Employment attorney.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.