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UPDATE: The Department of Labor Issues Additional Guidance For Employers Prior to FFCRA Taking Effect Next Week

The U.S. Department of Labor ("DOL") continues to provide guidance to employers in advance of the April 1, 2020 effective date of the Families First Coronavirus Response Act ("FFCRA").  Late last night, the DOL supplemented its "Frequently Asked Questions" online resource, addressing a number of questions to which employers have anxiously been awaiting answers – including whether or not furloughed employees are eligible for paid leave under FFCRA and whether or not leave can be taken intermittently.  The information below summarizes the DOL's most recent guidance.  Information about the DOL guidance issued earlier this week can be found here.

Are Employees Who Have Been Laid Off, Furloughed or Had Their Hours Reduced Eligible for Leave Under FFCRA?

No. The DOL guidance clarified that if an employee is laid off (whether temporarily or permanently, and in both cases referred to here as "Laid Off"), furloughed or has their hours reduced either before or after April 1, 2020, they are not eligible for paid sick leave or expanded family and medical leave under FFCRA.  The DOL explained that if an employee is furloughed, Laid Off or has a decrease in hours because there is not enough work or business for the employee, or because of a government directive, they are not considered unable to work because of one of the COVID-19 qualifying reasons.  

Note, however, that employees Laid Off, furloughed or with decreased work schedules, may be eligible for other paid leave benefits provided by state law and/or unemployment insurance.

How Does Leave Under FFCRA Interact with Existing Leave Entitlements?

The DOL specified that paid sick leave and expanded family medical leave under FFCRA is in addition to employees' preexisting leave entitlements.  Employers are not required, however, to permit employees to use existing paid leave to supplement the amount the employee receives for leave under FFCRA.  The employer may choose to do so, but may not claim a tax credit for any such supplemental amounts offered.

Employers may not require an employee to supplement or adjust pay mandated under FFCRA with paid leave that the employee may have under an employer's paid leave policy.

When Is An Employee Considered Unable to Work?

The DOL clarified that employees are unable to work if the employer has work for them to do and one of the COVID-19 qualifying reasons set forth in FFCRA prevents them from being able to perform that work, either under normal circumstances or remotely.

The DOL further clarified that if an employer agrees to allow the employee to work an alternate work schedule (i.e., to work early in the morning or late at night), then the employee is able to work and would not be qualified for leave under FFCRA, unless a COVID-19 qualifying reason prevents the employee from working the adjusted work schedule.  Additionally, to the extent an employee is able to telework while caring for their child, leave under FFCRA is not available.

Can FFCRA Leave Be Taken Intermittently?

It depends. The DOL guidance provides that employers may agree to allow employees who are working remotely to take FFCRA paid leave intermittently while teleworking if the employee is unable to telework during his or her normal work schedule (whether that be normal hours or work days) due to one of the qualifying reasons in the Emergency Paid Sick Leave Act.   In that situation, the employer may agree to allow such intermittent leave in any increment (i.e., reduced hours each day or a M, W, F schedule).  The DOL guidance encourages employers and employees to collaborate to achieve flexibility and meet mutual needs that combine telework and intermittent leave.

FFCRA leave cannot be taken intermittently, however, if the employee is working at their usual worksite and is taking leave because they: (i) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (ii) have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; (iii) are experiencing symptoms of COVID-19 and seeking a medical diagnosis; (iv) are caring for an individual who is either subject to a quarantine/isolation order or has been advised by a health care provider to self-quarantine; or (v) are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.  Employees working at their usual worksites may take leave intermittently if the leave is taken for reasons related to loss of childcare or school closure, provided that the employer agrees.

What Must Employees Seeking Paid Leave Under FFCRA Provide Employers?

Employees seeking leave under either the paid sick leave or expanded family medical leave provisions of FFCRA must submit appropriate documentation in support of the reason for the leave, including: the employee's name, qualifying work reason for requesting leave, a statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.

Documentation substantiating the reason for leave will also be necessary – for example, the source of any quarantine or isolation order (i.e., state or local quarantine executive orders) or documentation from a health care provider advising self-quarantine.  For employees requesting leave for child-care related reasons, the DOL guidance specifies that the employee must provide documentation in support of such leave, such as a notice from the government, school or day care website about the school closure.

Employers should maintain all documentation provided by employees in order to claim the tax credits provided under FFCRA.  

If you have specific questions about the FFCRA, or any other employment-related questions about COVID-19 and its impact on your business, please contact a Goldberg Kohn Labor and Employment attorney.



March 27, 2020

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Jon Klinghoffer
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Michael Sullivan
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