Friday, March 27, 2020

Coronavirus Update 3-27-2020 number 2: More answers from the DOL on the FFCRA, and another Zoominar

Late yesterday, the DOL published a second round of FAQs (numbers 15-37) answering more questions on the operation of paid family and sick leave under the Families First Coronavirus Response Act.

Here’s what the DOL has to say:

  1. Employers are entitled to require documentation from employees in support of their need for paid family leave or paid sick leave under the Act. This documentation includes a copy of the Federal, State or local quarantine or isolation order, written documentation by a health care provider advising you to self-quarantine, or a notice of closure or unavailability from a child’s school, place of care, or child care provider. Employers are also required to retain this documentation. Note, however, that the requirement of medical documentation is contrary to the CDC’s recommended best practices, for fear of overburdening our already stressed medical system and providers.

  2. Intermittent paid family leave and paid sick leave are allowed under the Act in any increment, but only if the employer agrees and if the employee is unable to telework their normal schedule of hours because of one of the qualifying reasons for leave under the Act. Note that the DOL is encouraging “employers and employees to collaborate to achieve flexibility and meet mutual needs,” and that it “is supportive of such voluntary arrangements that combine telework and intermittent leave.’

  3. An inability to telework means a complete inability to perform the job remotely. If an employer and employee agree, for example, that the employee will work the normal number of hours, but outside of normally scheduled hours (for instance early in the morning or late at night), then the employee is able to work and leave is not necessary.

  4. If an employer closes prior to April 1, its employees are not eligible for paid family or sick leave. Employers that close after April 1 are only required to pay employees for family or sick leave taken under the Act through the date of closure.

  5. Employees on furlough or temporary layoff are not eligible for paid family leave or paid sick leave under the Act. Further, employees cannot use paid family or sick leave for hours not working because of a reduced work schedule.

  6. Employees may not use their employer’s available paid time off to make them whole during a paid leave provided by the Act unless the employer expressly agrees. In other words, because FFCRA leave is capped, and may result in an employee receiving less than full pay, the Act does not permit employees to substitute other paid leave during FFCRA leave to make them whole.

  7. Employers cannot require that employees use available paid time off to make them whole during a paid leave provided by the Act.

  8. Employers are always free to provide employees more paid leave than the Act requires, but cannot claim any tax credit for the excess leave.

As for questions still left unanswered, my friend Jeff Nowak at FMLA Insights fills us in.
  • It’s still not clear from yesterday’s guidance who gets to make the ultimate call on whether the employee can telework and what happens if/when the employee objects to telework. We could use more guidance there.
  • What rules will DOL apply to exempt small businesses with fewer than 50 employees when the law’s requirements would jeopardize the viability of the business? [Me: this is a biggie]
  • Will DOL give guidance to employers with fewer than 25 employees as to how they comply when they cannot return an employee to an equivalent position.

I’ll be discussing these FAQs, along with answering all of your coronavirus-related employment law questions live on Zoom, Monday from 1 - 2 ET:

There will be plenty of room for everyone, as I’ve bumped the capacity to 500. And don’t forget, Norah promised she’ll drop by to share a song with everyone. Come for the info, stay for the music.