Department of Labor Quietly Adds to Guidance on Families First Coronavirus Act
March 27, 2020
Employers have faced many questions as they prepare for the effective date of the Families First Coronavirus Act (FFCRA). Many of those questions remained unanswered after the Department of Labor issued its “Families First Coronavirus Response Act: Questions and Answers” on Tuesday, February 23, 2020. The DOL added to its guidance late Thursday, February 25, addressing some of these outstanding issues:
What does it mean to be “unable to work” to qualify for leave under the FFCRA? An employee is unable to work if the employer has work available for the employee to perform, either at a worksite or remotely, and the employee is unable to perform that work because of a COVID-19 qualifying reason. A common example is if an employer has telework available, but the employee cannot perform the telework because the employee has a young child who needs supervision because the school is closed due to COVID-19.
On the other hand, if the employer’s worksite is shut down, for example under a stay at home order, and the employee’s work cannot be performed remotely, the employee likely does not qualify for leave—the employee is able to work, the work is just not available. Note, though, that a stay at home order is different from a quarantine or self-isolation order. Employees under a quarantine/isolation order might be entitled to leave.
Do laid off or furloughed employees qualify for leave? No. Once an employee is laid off or furloughed, whether before or after April 1, that employee is no longer eligible for leave under the FFCRA. The same is true even if the employee is laid off or furloughed while on leave provided by the FFRCA. The same is also true if an employer closes the worksite, before or after April 1, even for a brief or temporary period. In sum, an employee is not entitled to leave under the FFCRA during the period while the business is closed, even if the closure was caused by a federal, state, or local order. Similarly, an employee cannot use leave under the FFCRA for hours reduced by an employer, even if the reduction in hours was related to COVID-19.
Can an employer require documentation showing an employee’s need for leave? Yes. An employer can and should require an employee to provide documentation showing the COVID-19 qualifying need for leave, such as a closure notice on a school website or a copy of a government order placing the employee under quarantine. Indeed, an employer must require and retain documentation to claim for the tax credit available under the FFCRA. There are no designated FFCRA forms. However, an employee requesting emergency FMLA for a COVID-19 qualifying reason that rises to the level of a “serious medical condition” must continue to provide the medical certifications required under the FMLA. Click here for the fact sheet.
Can FFCRA leave be used intermittently? It depends. If an employee is teleworking, the employee may use emergency FMLA or paid sick leave in any increment the employer agrees to. If an employee is performing work at the employer’s worksite, the employee may use emergency FMLA or paid sick leave intermittently to care for the employee’s child(ren) whose school is closed or childcare is unavailable because of COVID-19 related reasons with the employer’s permission. However, an employee must use emergency paid sick leave continuously in full day increments if the employee is subject to an isolation or quarantine order, has been advised by a healthcare professional to self-quarantine, is experiencing COVID-19 symptoms, or is caring for someone isolated because of or suffering from COVID-19 symptoms. In these situations, the employee must use the emergency paid sick leave continuously until the employee exhausts the leave available or no longer has a qualifying reason for the leave. Note the DOL’s guidance encouraged flexible, voluntary arrangements when the employee needs leave to care for a child who is out of school or does not have childcare due to COVID-19.
Can FFCRA leave be used in conjunction with unemployment benefits? Not under federal law. Under federal law, an employee receiving paid leave under the FFCRA is not eligible for unemployment insurance benefits. However, benefits may be available under state law as states have the authority to offer unemployment benefits to workers whose pay has been reduced.
The full text of the DOL’s Q&A is available here.
