DOL Offers Additional Guidance Regarding FFCRA Sick Leave and Expanded FMLA

The Department of Labor (DOL) has released further guidance in the form of additional FAQs regarding the sick leave and expanded FMLA leave available under the Families First Coronavirus Response Act (FFCRA). Here are key highlights of those FAQs:

Documentation from Employees Seeking Paid Leave

Employers should require employees taking paid sick leave or expanded family and medical leave to provide documentation in support of the COVID-19 reason for their request. In connection with each request for leave, employees must confirm that they are unable to perform work or telework for a qualifying COVID-19 reason. Examples of documentation to request include a doctor’s note advising the employee to self-quarantine due to concerns related to COVID-19; a copy of the Federal, State or local isolation order (e.g., Shelter in Place order); a notice or email from the employee’s school or childcare facility indicating that it is closed. Employers should retain these documents to substantiate their claim for the tax credit.

Telework and Revised Schedules

Employees may only claim sick leave benefits if they are unable to work, or unable to perform telework, for a COVID-19 qualifying reason. If an employee and employer agree to work outside of the employee’s normal schedule, then the employee is able to work. Paid leave is not available for this employee unless a COVID-19 qualifying reason prevents the employee from working the assigned schedule.

Intermittent Leave

Leaves may be taken intermittently if allowed/agreed upon between employer and employee as described in the follow scenarios. The DOL has emphasized that in each situation, it encourages employers and employees to collaborate to achieve maximum flexibility:

• Intermittent Use of Paid Sick Leave While Teleworking: If an employee cannot work a normal schedule of hours due to one of the qualifying reasons in the new law, then the applicable paid sick leave, or new family medical leave, may be taken intermittently. Intermittent leave may be taken in any increment as agreed to between employee and employer.
• Intermittent Use of Paid Sick Leave While Working at Usual Worksite: Paid sick leave can only be taken in full-day increments if the employee is taking paid sick leave for any qualifying reason (other than reason #5 -- caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19). Conversely, if paid sick leave is needed for qualifying reason #5 (caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19), then the employer and employee can agree to the intermittent use of paid sick leave.
• Intermittent Use of Expanded Family/Medical Leave: When an employee must use expanded family and medical leave to care for a child whose school or place of care is closed (or childcare provider is unavailable), then intermittent leave is permitted if the employer and employee agree upon an intermittent leave schedule.

Layoffs and Furloughs Before April 1, 2020

Employees who were laid-off, furloughed, or otherwise no longer asked to work prior to April 1, 2020, are not eligible for paid sick leave or expanded family and medical leave. These employees may be eligible for unemployment insurance benefits. This is true whether the layoff was caused by lack of business, or as the result of a Federal, State, or local directive (e.g., Shelter in Place order).

Layoffs and Furloughs On or After April 1, 2020

Employees who are laid-off, furloughed, or otherwise no longer asked to work on or after April 1, 2020 (even if the employee requested leave prior to the layoff), similarly will not receive paid sick leave or expanded family and medical leave. These employees may be eligible for unemployment insurance benefits. This is true whether the layoff is temporary, whether it was caused by lack of business or as the result of a Federal, State, or local directive (e.g., Shelter in Place order).

Reduced Hours

If an employer reduces work hours because it does not have work for the employee to perform, the employee may not use paid sick leave or expanded family and medical leave to make up for the hours that he or she is no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. Employees may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working their full assigned schedule.

Interplay with Unemployment Insurance Benefits

As a general matter, if an employer provides paid sick leave or expanded family and medical leave, this will count against the employee’s eligibility for unemployment insurance benefits. It may make the employee ineligible, or the employee may be eligible for partial unemployment benefits. Each State has its own unique set of unemployment insurance rules.

Interplay with Group Health Insurance Benefits

Employers who provide group health coverage must continue coverage during an employee’s use of paid sick leave or expanded family and medical leave on the same terms as if the employee had continued to work. Generally, employees must continue to make any normal contributions to the cost of their health coverage. Employees who are not able to return to work after taking paid leave may be eligible for continued coverage depending upon the specific terms of the plan and/or may be eligible for coverage under COBRA.

Interplay with Other PTO

Employees are not permitted to unilaterally use their employer’s preexisting leave entitlements concurrently with FFCRA paid sick leave/expanded family and medical leave. However, employers and employees can agree that employees can supplement the amount received from FFCRA leave up to the employee’s normal earnings. So, if the employee is receiving 2/3 of the normal earnings from paid sick leave or expanded family and medical leave under the FFCRA, and if the employer permits, the employee may use preexisting employer-provided paid leave to get the additional 1/3 of normal earnings so that the employee receives full normal earnings.

Similarly, an employer cannot require employees to use employer-provided paid leave to supplement FFCRA paid leave amounts. Agreement between employee and employer is necessary.

Click here for the full set of DOL FAQs. Quarles & Brady will continue to monitor these FAQs as the DOL is likely to publish additional information on a rolling basis.

If you have any questions related to the provisions of the Families First Coronavirus Response Act, please contact your local Quarles & Brady attorney or:

• Chris Nickels: (414) 277-5519 / christopher.nickels@quarles.com