First, thanks to all who joined our webinar yesterday on the Families First Coronavirus Response Act (“FFCRA”).  For those who are interested, the slides can be found here.  Our next webinar is scheduled for Wednesday, April 1, 2020, from noon to 1 pm.  You can register here.  We will send a client alert out later today with more details. We will certainly be addressing the topics discussed below, and anything else FFCRA-related that comes out over the next days.

Now to the Q & A guidance.  Yesterday, the Department of Labor (“DOL”) updated its FFCRA Questions and Answers Page, and in the process answered some important questions for employers.  We have picked some of the most important questions and provided a summary below.  We will send out a second blog post on this topic soon, as we expect more important questions will be addressed over the next few days (and maybe hours).

Can employees take paid sick leave or expanded FMLA if our business closed prior to April 1, 2020?  According to DOL, no.  DOL explains: “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.”  This was a big question for employers in states where officials have issued Orders related to non-essential business closures.  Note that DOL does state this answer applies if “your employer sent you home and stops paying you because it does not have work for you to do.”  So, what if an employer is still paying employees who are not working?  Would these folks be entitled to paid sick leave?  For employers in this situation, this an issue that would warrant further discussion with your labor and employment counselors.

The DOL also explained that the same guidance applies if an employer closes on or after April 1, 2020.

What if the business is open, but employees are furloughed?  Are these furloughed employees eligible for paid sick leave or expanded FMLA?  Again, DOL says no.  DOL explains:  “If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.” 

What if we reduce hours?  Can paid sick leave or expanded FMLA be used to cover the gap in hours?  DOL says no.  DOL explains:  “This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.”   However, paid sick leave and expanded FMLA would be available a COVID-19 qualifying reason prevents the employee from working a full schedule.

Can our employees collect unemployment insurance benefits while receiving pay for paid sick leave and/or expanded family and medical leave? From DOL’s perspective, no.  However, DOL cautions that each state has its own unique set of rules.  This is another topic you may need to discuss with labor and employment counsel depending on where your employees are working.

What kind of documentation can and should I ask for from employees who are taking paid sick leave or expanded FMLA?   If an employee is requesting leave to care for a child because school/daycare is closed, or child care provider is unavailable, you must provide the employee with the same FMLA materials you would provide under traditional requests.  The employee must provide the employer with documentation in support of the leave, which can include a notice posted (online, newspaper, facility’s website) regarding the closure of the school/daycare or a direct communication (even email) from an employee of the facility advising of closure and/or inability to provide childcare.  This same requirement applies when the employee seeking leave for child-care related reasons utilizes the two weeks of paid sick leave concurrent with the first two unpaid weeks of expanded FMLA.

If an employee uses paid sick leave for medical reasons related to COVID-19 and their condition constitutes a serious health condition and qualifies the employee for traditional FMLA, then all existing certification requirements under the FMLA are in effect and they must continue to provide medical certifications for leave.

Importantly, this documentation will also be needed to support any requested tax credits sought by the employer for payments under FFCRA.

How does the FFCRA interact with employer-provided paid time off?  The new guidance provides welcome clarification for employers on the interaction between the FFCRA and other types of paid time off under pre-existing employer policies, like vacation time.  Specifically, the DOL confirmed that employees may not take both paid sick time or emergency FMLA leave under the FFCRA and other paid time off at the same time.  Rather, the employee must choose one or the other.  Employers may allow employees to supplement 2/3 pay under the FFRCA with employer-provided vacation or other paid time off, but only by mutual agreement and only up to the employee’s regular earnings.  The DOL also made clear that employers will not receive tax credit for any amount of any supplemental paid time employees use while also receiving paid under the FFRCA.

The complete Question and Answer section can be found here.  We will provide our Part Two update soon.