The Department of Labor (DOL) issued a second round of guidance related to paid sick leave and emergency FMLA under the Families First Coronavirus Response Act (FFCRA). It also issued the required employee rights notice that employers will need to post along with FAQs related to the notice.
The new guidance addresses intermittent leave, documentation necessary for leave, etc. In particular, it appears to address the question of whether or not a business closing due to a shelter-in-place ordinance or directive is required to offer paid leave.
Of note in the updated guidance:
- Q: If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), or after April 1, 2020, can I still get paid sick leave or expanded family and medical leave?
A: No. If your employer sent or sends you home and stops paying you because it doesn't have work for you to do, you wouldn't get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it's required to close pursuant to a federal, state or local directive. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, visit this site.
- Q: If my employer is open, but furloughs me on or after April 1, can I receive paid sick leave or expanded family and medical leave?
A: No. If your employer furloughs you because it does not have enough work or business for you, you aren't entitled to then take paid sick leave or expanded family and medical leave.
- Q: What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
A: If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave including: the employee’s name; qualifying reason for requesting leave; and statement that the employee is unable to work, including telework for that reason and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order or the name of the health care provider who has advised you to self-quarantine. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records.
If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed or child care provider is unavailable due to COVID-19, under the Emergency Family and Medical Leave Expansion Act you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school or daycare website, published in a newspaper, or an email from an employee or official of the school, place of care or childcare provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason.
- Q: May I collect unemployment insurance benefits for the time in which I receive pay for paid sick leave and/or expanded family and medical leave?
A: Probably not. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each state has its own unique set of rules.
- Q: If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?
A: If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave or paid sick leave on the same terms as if you continued to work. You generally must continue to make any normal contributions to the cost of your health coverage. If you don't return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
- Q: If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?
A: No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave.
This guidance is welcomed and appears to answer many of the lingering questions employers had. We will continue to update our COVID-19 Resource Library as further guidance is released.