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USDOL Issues Second Round of Guidance on COVID-19 Paid Leave

March 27, 2020

Late on Thursday, March 26, 2020, the U.S. Department of Labor released a second round of guidance for employers to answer additional questions about the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”).

The following is a brief recap of some additional questions answered in the new guidance. However, for more information, you can download the guidance here.

Employer Record Keeping

  • For employees taking leave under the Emergency Paid Sick Leave Act (“EPSLA”), employers must record the employee’s: (i) name, (ii) qualifying reason for requesting leave, (iii) statement that the employee is unable to work or telework for that reason, and (iv) the date(s) for which leave is requested.
    • Documentation of the reason for leave should include a copy of any quarantine or isolation order, and the name of the health care provider if applicable.
  • For employees taking leave under the Emergency Family Medical Leave Expansion Act (“EFMLEA”) employers may require documentation of closure of the employee’s school or place of care, such as a notice posted to the school’s website or an email from the childcare provider.
  • Employers who intend to claim a tax credit under the FFRCA should maintain the documentation for reporting purposes.

What does it mean to be “unable to work or telework” and thus qualify for leave under EPSLA and EFMLEA?

  • According to the DOL, “unable to work” means that the employer has work but the employee is not able to complete it due to a COVID-19 qualifying reason under the EPSLA or EFMLEA.
  • “Unable to telework” means that the employer does not allow telework, or the employee is not able to perform the work at a location other than the normal workplace due to a COVID-19 qualifying reason.
  • If an employee is able to work the normal number of hours outside of regularly scheduled hours (for example, early morning or late at night) during a telework situation, then leave is not necessary.

Intermittent Leave

  • EPSLA and EFMLEA Leave While Teleworking: Employees who are teleworking may take intermittent leave and may take it in any increment as long as the employer agrees.
    • For example, an employee could telework from 9:00 a.m. - 1:00 p.m., take leave from 1:00-5:00 p.m.
    • Note that only teleworking employees can use EPSLA or EFMLEA leave in less than full-day increments.
  • EPSLA and EFMLEA Leave While Working at Regular Worksite: leave may only be taken intermittently for the care of a child due to closure of the child’s school or place of care, or unavailability of childcare provider.
    • For example, the employee could work Monday, Wednesday, and Friday, and take intermittent EPSLA or EFMLEA leave on Tuesday and Thursday.
    • Regardless of the reason EPSLA or EFMLEA leave is used, it must be taken in full-day increments unless the employee is teleworking.
    • This rule is designed to prevent employees who may have been exposed to COVID-19 from spreading illness in the workplace.
  • NOTE: For leave unrelated to childcare, the employee only has EPSLA leave to use, and, unless the employee is teleworking, he or she must continue to take EPSLA leave until he or she either (1) uses the full amount of paid sick leave, or (2) no longer has a qualifying reason to take paid sick leave.
    • As stated above, the leave must be taken in full-day increments unless the employee is teleworking.
  • The DOL encourages employers and employees to collaborate and be flexible.

Closure of Workplace Before Leave Taken

  • If an employer closes a worksite before April 1, 2020, the employee is not entitled to paid leave under the EPSLA or EFMLEA, according to the DOL.
  • Likewise, if an employer closes a worksite after April 1, 2020, but before the employee goes out on EPSLA or EFMLEA leave, the employee is not entitled to paid leave.
  • This is true regardless of whether the closure results from lack of business or a federal, state, or local directive.
  • In the case of worksite closure, employees may be eligible for unemployment.

Closure of Workplace After Leave Commenced

  • If an employer closes a worksite while an employee is on EFMLEA or EPSLA leave, the employer must pay for any paid leave the employee used before the closure.
  • Once the worksite is closed, an employee is no longer entitled to paid leave, but may be eligible for unemployment.

Furloughs and Reduced Hours

  • Furloughed employees are not entitled to paid leave under the EPSLA or EFMLEA, even if the worksite remains open, but may be eligible for unemployment.
  • If an employer reduces an employee’s hours because it does not have work for the employee to perform, the employee is not entitled to use paid leave under the EPSLA or EFMLEA to make up for the reduced hours.  However, the employee can still use paid leave if the employee is unable to work his or her remaining scheduled hours because of a qualifying event.  For example, if an employee’s schedule is reduced from 40 hours to 30 hours, then the employee cannot use paid leave to make up for the 10 hours lost.  If the employee cannot work the 30 hours due to a qualifying event, then the employee would be able to use paid leave to cover his or her absence.
    • Employees whose hours or pay have been reduced may be eligible for unemployment benefits depending on the rules in each state. Connecticut, for example, considers such matters on a case-by-case basis.

Continued Health Insurance Coverage

  • Employees covered under an employer’s group health coverage plan are entitled to continued coverage during EPSLA or EFMLEA leave on the same terms as if the employee continued working.
  • If an employee does not return to work after leave expires, the employee should check with the employer to see if he or she can maintain coverage under the same terms, or if he or she is eligible for COBRA.

Using Accrued Leave and FFCRA Paid Leave Concurrently

  • An employee may use existing paid leave concurrently with or to supplement EPSLA or EFMLEA leave only if the employer agrees.
    • For example, if an employee receives 2/3 normal earnings from EPSLA or EFMLEA leave, the employee may use preexisting employer-provided paid leave to get the additional 1/3 of normal earnings, if the employer agrees.
    • Employers may refuse to allow employees to use existing leave concurrently or to supplement paid leave under the FFCRA.
  • An employer can supplement pay mandated by the FFCRA with the employee’s existing paid leave only if the employee agrees.
  • Employers cannot claim, and will not receive, tax credits for such supplemental amounts.
  • The employer can choose to pay employees in excess of the FFCRA mandated amounts, but will not receive tax credit for those amounts either.
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