Over the last month, since the passage of the Families First Coronavirus Response Act (“FFCRA”) (see our prior discussion here), the U. S. Department of Labor (“DOL”) has issued several forms of guidance for implementing the Act’s grant of 1) two weeks of “emergency paid sick leave” for certain COVID-19 related qualifying conditions, and 2) up to 12 weeks of “expanded family and medical leave” for employees who are unable to work because they must provide care for a child under 18 whose school or day care has closed because of COVID-19. The DOL initially issued its guidance via a “frequently asked questions” format, then subsequently issued a “temporary rule” on April 1. If that was not enough, the DOL then issued a “correction notice” on April 10. Additionally, the DOL has been updating the FAQ frequently. In light of this latest guidance, where do we stand on some commonly asked issues regarding the FFCRA’s leave provisions?
Requiring the use of employer-provided paid leave. The FFCRA is clear that employers cannot force employees to use any employer-provided paid time off (“PTO”) concurrently with the two weeks of emergency paid sick leave. But there has been debate (along with shifting guidance) regarding this issue as it applies to the new expanded family and medical leave available for the care of a child. The earlier guidance had suggested that an employer could NOT make an employee concurrently use such employer-provided leave. However, the latest revised DOL rule and guidance indicate that (as with ordinary FMLA leave,) an employer may require an employee to use PTO available under the employer’s policies, to run concurrently during the period of the expanded FFCRA family and medical leave. Note that the employee would be entitled to full pay when being required to use PTO, as opposed to the 2/3 of salary payment (with a cap of $200/day and $10,000 in the aggregate) provided under the FFCRA expanded family and medical leave provision. Of course, the employer will only be eligible for the tax credit for wages paid to the employee at the rate provided by the FFCRA. Please note: Provided that both an employer and employee agree, PTO provided by an employer may be used to supplement the pay provided under the expanded family and medical leave provisions of the FFCRA so that the employee receives the full amount of the employee’s normal compensation.
Relationship with “usual” FMLA. A common question is the interrelationship between the FFCRA and the FMLA, specifically, how this new leave right correlates with the 12 weeks of leave (or 16 weeks for private sector employees in Connecticut) that are provided by existing FMLA statutes. As with the above discussion concerning the concurrent use of PTO, it may help to think of the emergency paid sick leave portion of the FFCRA as a new right that is not dependent on or related to the FMLA, while the FFCRA’s expanded family and medical leave is a temporary extension of existing FMLA provisions (albeit with pay, and available only for the new COVID-19 related child care reason). The use of emergency paid sick leave does not count against an employee’s typical grant of FMLA leave; but the use of expanded family and medical leave under the FFCRA will count against (and thus reduce) the employee’s usual/remaining allotment of FMLA leave. In addition, an employee’s prior use of FMLA leave counts against the allotment of 12 weeks of leave that may be available under the FFCRA’s expanded family and medical leave provisions. As an example, if an employee has already used six weeks of FMLA leave for a prior serious health condition during the current FMLA leave year period, the employee will only have up to six weeks of leave under the FFCRA’s expanded family and medical leave provision.
Teleworking and use of leave. We are often asked whether an employee who is already working remotely from home can use the leave provided under the FFCRA. Such leave is available where an employee is unable to work if 1) the employer has work for the employee and 2) one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, whether the employee is at his or her “normal worksite” or working remotely/teleworking. The guidance from the DOL expressly provides:
If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
Therefore, to the extent an employee is able to telework while caring for one’s child, leave under the FFCRA is not available. Conversely, if an employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for leave under the FFCRA, then the employee is entitled to take such leave.
And finally-availability of leave for furloughed or laid off employees. The DOL had previously advised that employees who have been furloughed or laid off (even if due to a closure related to the COVID-19 pandemic) are not eligible for leave under the FFCRA. Some confusion did arise in light of claims that persons who were unable to work due to government-issued “stay at home” and “shelter in place” orders were in effect subject to a “quarantine or isolation order”, and thus covered by the FFCRA and its emergency paid sick leave provision.
The DOL’s most recent guidance clarifies this issue (and confirms it prior guidance). The DOL points out that in order for these types of “stay at home” or “shelter in place” orders to qualify a person for FFCRA leave, the employer must actually have work for the employee. The DOL pointed to specific situations where an employee may be eligible for leave (for example, if an employer has work – or telework – for an employee but the employee cannot perform such work because he or she has to isolate for 14 days due to having traveled, or if he or she is stuck in a “containment zone”). The DOL guidance then specifically noted that an employee who does not have work to perform is not eligible for leave. The DOL noted as an example:
If, however, your employer closed one or more locations because of a quarantine or isolation order and, as a result of that closure, there was no work for you to perform, you are not entitled to leave under the FFCRA and should seek unemployment compensation through your State Unemployment Insurance Office.
Thus, the DOL has confirmed an employee who is laid off or furloughed due to a workplace closure, or because the employer has no work available for them, are not eligible for leave under the FFCRA. Such employees should be eligible for unemployment compensation benefits.
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