DOL Issues Second Set Of FAQs; And The News Is Mostly Good For Employers

Yesterday, the DOL issued a second set of FAQs related to the Families First Coronavirus Response Act (FFCRA).    You can find the FAQs here.

These are the highpoints:

Documenting Leave:

  • Employees must support leave requests with the appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).
  • Employees must provide documentation supporting the absence, for example, written documentation from a health care provider advising self-quarantine, a notice posted on a government, school, or daycare website,  or an email from an employee or official of the school, place of care, or child care provider.  As you can see, the standard will be fairly low.

Inability to Work or Telework:  “unable” to work or telework means that an employer has work available, but the employee is unable to work due to one or more of the specified paid reasons for leave.   If an employer offers the ability to work the same number of hours per day but different hours, the employee is able to work and leave is unnecessary unless: 1) the reason for leave prevents the employee from working that schedule, 2) the employee has a qualifying paid sick leave absence, or 3) the employee cannot telework due to the need to care for a child.  If an employee can telework while caring for the child, leave is unavailable.

Intermittent and Reduced Schedule Use of Paid Leave:  Employees and employers may agree to intermittent and reduced use of emergency paid sick leave (EPSL) and emergency paid Family and Medical Leave benefits (FMLA). The DOL appears to then separate the remaining guidance into two types:  whether the employee is teleworking or working onsite.

Worksite Closure:  If a worksite is closed, employees are not entitled to receive, or to continue to receive, paid leave.   It does not matter whether: 1) the closure occurs before or after the law takes effect; 2) an employee is on leave when closure occurs; 3) an employer furloughs an employee; 4) the worksite temporarily closes and the employer says it will reopen in the future.

Shelter-in-Place and Business Closure Orders:  It appears that shelter-in-place, stay-at-home or business closure orders by federal, state and local governments probably do not trigger EPSL entitlement.

Use of Leave for Scheduled Hours Only: Leave is available only for an employee’s scheduled hours.  If an employer reduces an employee’s hours, the employee can use leave for the remaining scheduled hours only.

Continuation of Health Coverage:  We are to apply “old” FMLA standards to emergency family leave.

Use of Existing Benefits:  Employees cannot use existing benefits, such as paid leave, without the employer’s approval, and an employer may not force an employee to use such benefits.

These are just my thoughts on the key points of the FAQs.  I would strongly encourage you to read the FAQ in detail.

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