DOL Issues Guidance on Emergency Sick Leave and Emergency FMLA Leave Under The FFCRA

Last week in our publication entitled Employer’s Guide to Federal and State Employee Leave Rights and Income Protection for Coronavirus Related Absences, we addressed the new Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Leave”) that employers must provide to employees as of April 1, 2020 under the new Families First Coronavirus Response Act (FFCRA).  As indicated in that publication, the US Department of Labor was expected to issue additional guidance of compliance with these new paid leave obligations.

Since the passage of the FFCRA, the U.S. Department of Labor has issued several versions of a Questions and Answers publication that clarifies some of the issues that were not directly addressed in the FFCRA.  Below is a summary of some of those clarifications.

Documentation Employees Must Submit to Support a Paid FFCRA Leave Request.  The FFCRA mandates Emergency Paid Sick Leave if the employee is able to work/telework for one of 6 Covid-19 related absences (refer to the Guidance link above for the list of 6 qualifying reasons) and paid Emergency FMLA Leave if the employee is unable to work due to a child’s school or daycare closure (or unavailability of daycare provide).  The DOL makes it clear that employers must require employees to provide documentation to support an Emergency Paid Sick Leave or Emergency FMLA Leave, including:

• the employee’s name;
• the qualifying reason for the leave;
• a statement that the employee is unable to work, including telework, for that reason;
• source of the quarantine/isolation order or name of healthcare provider that recommended self-isolation; and
• In the case of a sick leave and a subsequent Emergency FMLA Leave due to closure of school/daycare, the employer must require documentation – e.g., notice on government, school, daycare website, newspaper report, or email from the school, place of childcare or childcare provider.

The DOL notes that these documents should be retained if the employer intends to claim the 100% tax  credit available to employers under the FFCRA for leave payments. 

Clarification of “Unable to work/telework” Issues.  Under the FFCRA, Emergency Paid Sick Leave and Emergency FMLA Lleave are not available unless the employee is unable to work, either in the office or remotely, due to a Covid-19 qualifying reason.  The DOL provided the following clarification on when that criteria is met:

• If the employer has work/telework but the employee is unable to work/telework due to one of the COVID-19 qualifying reasons, leave is available.
• If there is an agreement for the employee to work the normal number of hours but outside normally-scheduled hours (e.g., evenings), leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working those hours.
• To the extent that a parent is able to care for a child while teleworking, Emergency Paid Sick Leave and Emergency FMLA leave is not available.

Intermittent Leave Under the FFCRA.  Intermittent use of leave under the FFCRA is limited as follows:

• While teleworking, Emergency Paid Sick Leave and Emergency FMLA Lleave can only be taken intermittently with the approval of the employer.
• If reporting to the worksite, intermittent leave must be taken in full day increments. If the employee is working remotely, leave cannot be taken intermittently if (i) the employee is subject to a quarantine/isolation order or recommendation, (ii) the employee is taking care of a family member subject to such an order or recommendation, or (iii) has symptoms of the virus and is seeking diagnosis.
• Unless the employee is teleworking, once sick leave begins the employee must continue on sick leave until i) the full amount of leave is used, or 2) the employee no longer has a qualifying reason for the leave (e.g., a medical clearance).
• Any unused sick leave may be used for another qualifying reason before 12/31/20, when leave FFRCA leave rights expire.

Furloughs, Workplace Closures and Reductions in Hours.  The DOL clarified several outstanding issues relative to the timing of a furlough or closure, and the use of FFCRA leave in the event of a reduction in the employee’s hours:

• If an employee is furloughed due to lack of business or the worksite is temporarily closed after 4/1/20, the employee is ineligible for FFCRA leave even if they subsequently experience a qualifying condition.
• If the employee’s hours are reduced, they cannot use FFCRA leave to cover the hours that they are no longer scheduled to work because the employee is not prevented from working for a COVID-19 qualifying reason (NOTE: these individuals may qualify for partial unemployment benefits).

Continuation of Health Coverage During an FFCRA Leave. Coverage must be maintained during FFCRA leaves at pre-leave levels, but the employee must continue contributions; if FMLA leave is exhausted, continuation is available under COBRA (20 or more employees) or NJ “mini” COBRA (less than 20 employees).

Other Paid Sick Leave or Time Off Benefits.   Absent agreement with the employer, the employee cannot use Emergency Paid Sick Leave concurrently with other sick/PTO benefits to supplement the capped benefits under the FFCRA – the employee must make an election which one to use if the employer does not agree to supplement. However, the employer may not mandate any substitution of paid sick or other paid time off benefits during the employee’s use of Emergency Paid Sick Leave.

However, in the case of Emergency FMLA Leave, the first two weeks are unpaid but in most cases the employee will be taking advantage of the 10 days of Emergency Sick Leave during this time period. During the remaining 10 weeks of paid Emergency FMLA Leave, the employer is permitted to require the employee to exhaust any paid time off benefits.

No Tax Credits for Overpayment.   Under the FFCRA, employers get a 100% tax credit for Emergency Paid Sick Leave or Emergency FMLA Leave benefits paid to employees, subject to the caps imposed upon leave payments.  (See the link to the Guidance above for further information on the payment caps). However, if an employer elects to pay the employee beyond the FFCRA’s caps, they cannot claim the FFCRA tax credit for these overpayments.