Labor Department Offers New Q & A’s Clarifying Expanded Paid Sick Leave and FMLA

  • Mar 27, 2020
  • COVID-19
  • Meggen E. Lindsay and Dennis J. Merley

The U.S. Department of Labor (DOL) last night released updated an updated Q & A guidance that answers many of the questions that employers have been asking regarding employee eligibility for paid leave under the Families First Coronavirus Act (FFRCA)—most helpfully as it relates to whether employees on furlough are eligible for paid leave, whether the paid leave can be taken intermittently, and what documentation is required by employees.

We highlight the most significant updates below and suggest you review the entire document when you have the time (The first 15 are repeats from earlier Q&A’s so you can just focus on #’s16-37). For purposes of this review, the new emergency paid sick leave is referred to “EPSL” while the new expanded FMLA leave provisions will be termed “Expanded FMLA.”

We will not address every new DOL answer since some are redundant or less immediately critical.

#16: Required Documentation

EPSL – The DOL had advised employers that they needed to obtain “appropriate documentation” of an employee’s need for ESPL. They have now identified that appropriate documentation includes the source of any quarantine or isolation order (e.g. a copy of the employee’s actual Federal, State or local quarantine or isolation order) or written documentation by a health care provider advising the employee to self-quarantine because of COVID-19.

Expanded FMLA – The DOL states that to obtain expanded FMLA to care for a child whose school or place of care is closed due to COVID-19, employers must obtain “appropriate documentation,” which can include a notice that has been posted on a government, school, or day care website or published in a newspaper, or an e-mail from the school, place of care, or child care provider.
The DOL specifically reminded employers to retain this documentation in order to claim a tax credit under the FFCRA for the paid leave provided under EPSL or expanded FMLA.

#17 – 19: Telework

Employees are not eligible for ESPL or expanded FMLA due to closure of the work place if they are able to telework. The Q&A states that an employee is able to telework (and therefore ineligible for expanded FMLA) when the employer permits or allows the employee to perform work while at home or other remote location.

However, an employee is unable to telework if the employee is unable to perform the telework because of one of the COVID-19 reasons set forth in the EPSL or expanded FMLA.

If the employer and employee agree that teleworking can take place outside of ordinary working hours, the employee is not eligible for expanded FMLA unless the employee is unable to work at all due to one of the COVID-19 reasons set forth in the EPSL or expanded FMLA.

#20-22: Increments of Leave and Intermittent Leave

In a huge nod to employers, EPSL and expanded FMLA must be taken in full-day increments when the employee is working at his/her jobsite, and once the employee starts taking the paid leave, such leave must continue until either the paid leave entitlement is exhausted or the employee no longer meets the eligibility requirements.

Also, intermittent leave is not permitted unless the employer consents. Even with consent, intermittent leave for an employee at a job site is permitted only due to child care reasons – it may not be used if the employee is absent due to illness from COVID-19.
Employees who are teleworking may take EPSL for any qualifying reason on an intermittent basis, so long as the employer consents.

This should greatly assist employers in administering these new leave laws.

#23-26: Effect of Employer Closure or Employee Furlough/Temporary Layoff on Entitlement to Benefits under EPSL or Expanded FMLA

The DOL’s guidance makes clear that unemployment benefits, and not paid leave under the FFCRA, is the relief available to employees whose business closes or who have furloughed employees—whether as a result of a state Stay-at-Home Order or for economic reasons.

If a job site closes – or employees are furloughed or temporarily laid off because there is not enough work for them prior to April 1 (the effective date of the new law) or after April 1 but before the employee needs leave, the employee is ineligible for EPSL or expanded FMLA. This is because the employee is off work due to economic reasons, not for a reason that qualifies for EPSL or expanded FMLA.

The same is true if the employee is on EPSL or expanded FMLA at the time of closure, or if the employer is open but the employee is furloughed due to lack of work.

#27: Shelter in Place and Business Closure Orders Do Not Appear to Support the Need for Leave

While not highlighted as a separate response, the DOL appears to have announced that Shelter in Place and other workplace closure orders do not trigger eligibility for EPSL or expanded FMLA.

In stating that an employee is not entitled to EPSL or expanded FMLA benefits during a temporary closure, the DOL stated: “This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.”

We will see if they clarify or expand on this but for now, it seems as if state closure orders such as the one recently issued by Minnesota Governor Tim Walz do not trigger eligibility for the new COVID-19 related benefits.

#28: Using EPSL or Expanded FMLA for Hours Reductions

This is not permitted because these paid leave benefits are provided only if work is not available. Work is still available to employees working reduced hours.

#30: Must Insurance Coverage Continue for Employees Taking EPSL or expanded FMLA?

The FFCRA is simply an expansion of the existing FMLA so the rules regarding insurance coverage are the same as they always have been for FMLA leaves.

#31-33: Supplementing EPSL and Expanded FMLA with Current Paid Leave Benefits

Employees may not combine ESPL or expanded FMLA benefits with existing paid leave benefits, nor may the employer require such. However, employers may allow employees to do so if they choose.

For the two weeks when EPSL is available, the employee may choose whether to use that benefit or their pre-existing paid leave benefit. The employer cannot require that one or the other be used, nor may the employee use both (as explained above).

Bottom Line

The DOL’s second round of Q&A’s begin to answer many of the questions that the new law has raised, and based on our initial review appear, offer significant help and clarity for employers preparing for the April 1 effective date.

We will continue to report on the DOL’s guidance as we continue to review the updated FAQs.

For all of the latest critical COVID-19 information for employers, check our continually updated FAQ’s by clicking on the banner headline at the top of the Felhaber Larson web page.