By: Eric J. Uhl / March 30, 2020

The U.S. Department of Labor (DOL) has updated its guidance on emergency paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act (FFCRA) in its answers to FAQ’s. You can see the updated FAQ’s here (link to open in new tab).

The updated FAQ’s state that, if an employer sends employees home and stops paying them, the employees will not be not entitled to paid sick leave or expanded family and medical leave if the employer closes its worksite due to lack of business or because it is required to close pursuant to a Federal, State, or local directive to do so. The same result applies whether the closure occurs before or after April 1, the effective date of the FFCRA. In addition, if an employer closes its business while workers are already out of work and taking emergency paid sick Leave or emergency FMLA, the employer must pay for any paid emergency sick leave or expanded paid family and medical leave used by employees before the closure, but it has no obligation to provide further emergency paid leave after the date of the closure. The DOL’s FAQ’s state that in such cases employees may be entitled to unemployment insurance benefits through their state unemployment agency.

The DOL’s FAQ’s also provide updated information regarding permissible certification and documentation to support a need for emergency paid sick leave and emergency expanded FMLA leave. In addition, the FAQ’s state that employers must collect documentation in support of leave under “applicable IRS forms, instructions, and information.” It does not appear that the IRS has yet to provide the applicable forms.

The DOL also provided guidance regarding the use of intermittent leave under the emergency paid sick leave and FMLA leave provisions. In summary, employees who are teleworking may take emergency FMLA leave or emergency paid sick Leave on an intermittent basis if their employers agree. For an employee who is able to work at a job site, the employees may not take leave on an intermittent basis if the leave is being taken because the employee:

  •  Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Once paid sick leave for one or more of these qualifying reasons begins, the employee must continue to take paid sick leave each day until the employee either uses the full amount of paid sick leave, or no longer has a qualifying reason for taking the paid sick leave. The reason for this rule is that the FFRCA is intended to provide paid sick leave to prevent employees spreading the virus to others.

On the other hand, if an employer agrees to do so, an employee may take emergency paid sick leave on an intermittent basis to care for a child whose school or place of care is closed, or when the child care provider is unavailable due to COVID-19 related reasons. In addition, if an employer agrees to do so, an employee may take emergency expanded FMLA leave in such situations.

There still are several outstanding questions, but this most recent information from the DOL provides a little more guidance. Please let me know if you have any questions.

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