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DOL Issues Second Round of Guidance on Families First Coronavirus Response Act

As implementation day (April 1, 2020) approaches, late yesterday, March 26, 2020, the U.S. Department of Labor (DOL) has issued yet another set of additional guidance and FAQs to the Families First Coronavirus Response Act (the Act). Technically, the DOL added to its already existing guidance by adding 23 additional FAQs (FAQs 15-37).

The newly issued guidance provides employers with additional clarity on how to implement the new Act and specifically, The Emergency Paid Sick Leave Act (EPSLA) and The Emergency Family and Medical Leave Expansion Act (EFMLEA). The guidance touches on some of the more practical aspects of how these laws are to be implemented:

Documentation: 

The DOL makes clear that employees “must” provide their employers with certain documentation in order to take leave under the EPSLA or EFMLEA:

EPSLA: According to the DOL, if an employee takes sick leave under the EPSLA, employers must require their employees provide them with appropriate documentation in support of the reason for the leave. Specifically, employees need to provide their employer with (a) their name, (b) qualifying reason for requesting EPSLA leave, (c) a statement that the employee is unable to work, including telework, for that reason, and (d) the date(s) for which leave is requested. The DOL also makes it clear that employees must provide documentation of the reason for leave, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. Importantly, the DOL makes clear that if employers intend to claim a tax credit under the Act, they should retain these records.

EFMLEA: If an employee takes COVID-19 related leave under the EFMLEA to care for his or her child whose school or place of care is closed, or child care provider is unavailable, employers must also require the employee to provide it with appropriate documentation in support of such leave, just as an employer would for conventional FMLA leave requests. For example, this documentation might include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason under the EPSLA. Importantly, the DOL makes clear that if employers intend to claim a tax credit under the Act, they should retain these records.

It is unclear at this point whether the DOL will issue model forms for employers and employees to use when handling EPSLA or EFMLEA leave requests. Another issue that is left unresolved is how long an employee would have to provide documentation under the EPSLA. While it can be presumed that the 15-day documentation period would apply to the EFMLEA leave, such a documentation period would extend beyond the EPSLA’s 10-day period of pay.

So What Exactly Is Telework?: 

As we are all aware, both the EPSLA and EFMLEA only permit employees to take paid leave when they are unable to work or telework for a qualifying reason. However, telework was not defined in the Act. While the meaning of the term “telework” may seem straightforward, the DOL’s guidance actually appears to add more mud to the already murky waters. Specifically, the DOL states that an employee can telework when the employer permits or allows the employee to perform work while he or she is at home or at a location other than the normal workplace. Seems obvious, right?  However, the DOL then goes on to say, that an employee is unable to telework if the employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the Act prevents the employee from being able to perform that work, either under normal circumstances at the employee’s normal worksite or by means of telework.

Perfectly clear, right?  However, under the DOL’s guidance it is not clear as to who can decide whether the employee can telework or not. Is it the employer, or the employee?  That question is not clearly answered, but the DOL seems to suggest in FAQ #18 that this decision may have to be a joint decision between the employer and employee when it states:

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.

But what happens if the employer and employee cannot agree?  Is the employee deemed to not be able to telework?  We will need to wait and see if the DOL will answer this question with additional guidance.

May An Employee Take Intermittent EPSLA/EFMLEA Leave?: 

It depends on whether the employee is teleworking or working in his or her normal workplace and for what reason the employee needs leave. Specifically, employees may take EPSLA or EFMLEA leave on an intermittent basis while they are teleworking, but only if the employer agrees. In that case, an employee may take intermittent leave in any increment to encourage employees to keep working. Moreover, employees may take EPSLA or EFMLEA leave on an intermittent basis if they are working in their normal worksite only if they are taking leave to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons, but only if their employer agrees.

However, if the employee is working at his or her normal worksite and not taking leave to care for his or her child whose school/daycare has been closed, EPSLA leave must be taken in full-day increments, and once the employee begins taking paid leave, the employee must continue to take paid sick leave each day until the employee either:  (a) uses the full amount of paid sick leave; or (b) no longer has a qualifying reason for taking leave. This makes sense because one of the purposes of the EPSLA is to provide paid sick leave as necessary to keep the employee from spreading COVID-19 to others.

No Paid Leave for Furloughs and Layoffs: 

The DOL’s guidance states for the record something many had suspected and which we had previously reported – that is, if an employee’s work site closes (for any reason) employees cannot take leave under EPSLA or EFMLEA.

Moreover, EPSLA and EFMLEA leave is not available if the reason that the employee is not working is because he or she has been furloughed, laid off, or has had his or her work hours reduced. Notably, the DOL makes clear that it does not matter if the closure occurs before or after April 1, 2020 (the effective date of the Act). The DOL also clarifies that EPSLA and EFMLEA leave is not available if (a) an employee is on leave when closure occurs, (b) an employer furloughs an employee, or (c) the work site temporarily closes and the employer says it will reopen in the future. Obviously, however, employers must be careful when taking any action against an employee who is on EPSLA or EFMLEA leave to ensure they do not buy themselves a potential discrimination or retaliation lawsuit.

What About Health Insurance?: 

The DOL’s guidance states that when an employee is out on EFMLEA leave, employers must maintain his or her group health insurance benefits on the same terms as if the employee had continued working (as they would under “regular” FMLA leave). Employers must also maintain employee health benefits for employees out on EPSLA leave as well. In fact, the DOL explicitly states that employers “cannot establish an eligibility rule or set an individual’s premium or contribution rate based on whether the employee is actively at work unless an absence from work due to any health fact is treated as being actively at work for plan or health insurance coverage purposes.”

How Does EPSLA And EFMLEA Leave Work With An Employer’s Existing Paid Leave?: 

A question that was left unanswered in the Act was how would the EPSLA and EFMLEA interact with other existing paid leave entitlements. Specifically, would employees be able to take paid leave under the EPSLA/EFMLEA and their accrued vacation/PTO?  Or would employees be able to use vacation/PTO time to “close the gap” when they are only entitled to 2/3 of their regular pay under the EPSLA/EFMLEA?  The DOL’s updated guidance appears to have answered these questions. Specifically, the DOL has made it clear that:

  1. If an employee is entitled to EPSLA/EFMLEA leave and some other type of existing paid leave provided by his or her employer, the employee has the sole discretion to use EPSLA/EFMLEA or any accrued paid leave through his or her employer. Importantly, employers cannot dictate what type of leave their employees use during this period.
     
  2. Employees may not unilaterally choose to supplement their 2/3 pay under EPSLA/EFMLEA leave with employer-provided paid leave unless agreed to by the employer. Note, conversely, that employers also may not require their employees to “burn” their paid leave entitlements to receive full pay when out on EPSLA/EFMLEA leave, unless their employees agree.

It is also worth noting that the DOL has explicitly stated that if an employer allows its employees to supplement their paid leave with the amounts as described above, employers may not claim, and will not receive tax credit, for such supplemental payments. Likewise, while employers are permitted (but not required) to give their employees more generous benefits than required under the Act, they cannot claim (and will not receive) a tax credit for those more generous payments.

While the DOL’s updated guidance provides many answers it still leaves a lot of questions for employers. Such as, do shelter-in-place or stay-at-home orders (such as Governor Wolf’s March 23, 2020, stay-at-home order) constitute a COVID-19 related quarantine or isolation order such that an employee may take EPSLA leave during this time period?  Presently, that question is unclear, but employers have a strong argument that such an order does not qualify.

The DOL also has not answered what exactly is a “healthcare provider” or “emergency responder” under the Act, such that they may be excluded from the Act’s coverage. Or whether it will exempt small employers (i.e., those with less than 50 employees) from the Act’s coverage.

For now, we will have to wait and see, but our Employment & Employee Relations Practice is here to answer any of your questions related to the Act and will continue to keep you informed on any actions the government takes as it relates to COVID-19 that will impact employers.

About the Authors

Sidney R. Steinberg is a Principal and Chair of the Firm's Labor and Employment & Employee Relations Practice Groups. Mr. Steinberg’s practice involves virtually all aspects of labor and employment law, including substantial litigation experience defending employers against employment discrimination and wage and hour disputes in federal and state courts. He also has experience in representing employers before federal, state and local administrative agencies, including the EEOC, the Department of Labor and the National Labor Relations Board, as well as in arbitration proceedings.

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David E. Renner is a Principal in the Firm's Employment & Employee Relations and Wage and Hour Practice Groups. He represents and counsels employers in a wide variety of employment matters, including wage and hour audits and class/collective actions, anti-discrimination and equal employment opportunity policies, affirmative action planning, trade secret/restrictive covenants, Office of Federal Contract Compliance Programs (OFCCP) audits and investigations, Title III of the Americans with Disabilities Act (ADA) relating to public accommodations, and labor relations.

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