Updated and Detailed DOL Guidance On Expanded FMLA and Paid Sick Leave

Garrett Wozniak
Garrett Wozniak
03/27/2020

The Department of Labor has issued a second round of Q&A regarding the FFCRA.  Here is a summary of the new guidance and a reminder regarding some of the other more common questions.

How is regular rate determined?

Regular rate is the average of an employee’s regular rate over a period of up to six months prior to the date leave is taken.  If an employee has not worked for an employer for six months, the regular rate used is the average of the employee’s regular rate of pay for each week he has worked for the employer.

If an employee is paid with commissions, tips, or piece rates, these wages are incorporated into the above calculation.  Remember also that the regular rate cannot be less than the applicable minimum wage.

Recordkeeping obligations and documentation.

Employer must require employees taking emergency paid sick leave to provide documentation supporting the leave, which should at a minimum include:  the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.

Documentation should also identify the source of any quarantine or isolation order, or the name of the health care provider who has advised an employee to self-quarantine.

Regarding the EFMLA provisions for employees who take EFMLA to care for his/her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, the employee must provide documentation supporting the leave.  Per the DOL, this could 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.

Employers who seek a tax credit under the FFCRA will likely be asked for supporting documentation.

When is an employee able to telework for FFCRA purposes?

An employee may telework when an employer allows the employee to perform work while he is at home or at a location other than his normal workplace.

Intermittent leave.

Intermittent leave is permitted if an employer allows it.

Increment of leave use.

Unless an employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments.  Per the DOL, it cannot be taken intermittently if the leave is being taken because:

  1. an employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. an employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. an employee 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
  5. an employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless an employee is teleworking, once an employee begins taking paid sick leave for a qualifying reason, he must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.

What if the qualifying reason no longer applies and an employee has remaining available leave?

If an employee no longer has a qualifying reason for taking paid sick leave before she exhausts paid sick leave, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

If an employer closes before April 1, 2020, can an employee receive paid sick leave or expanded family and medical leave?

No.  Per the DOL:  “If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.”

If an employer closes while an employee is on EPSL or EFMLA, the employee is no longer entitled to either paid leave as of the date the employer closes.

If an employer is open, but furloughs employees on or after April 1, 2020, can employees receive paid sick leave or expanded family and medical leave?

No.  Per the DOL:  “If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.”

EFMLA and EPSL are not available to fill the gap caused by a reduced schedule.

If an employer reduces an employee’s hours because it does not have sufficient work, an employee may not use paid sick leave or expanded family and medical leave for the hours that she is no longer scheduled to work.

Health coverage and leave.

Employees whose employers provide group health coverage are entitled to continued group health coverage during EFMLA on the same terms as if the employee continued to work.

Employees generally must continue to make any normal contributions to the cost of health coverage.

If an employee takes EPSL, an employer must continue health coverage.

Using existing leave to supplement EPSL and EFMLA.

An employee who is eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, must choose one type of leave to take, unless an employer agrees to provide additional/concurrent leave.  Likewise, an employer may not force an employee to supplement FFCRA leave with other accrued leave.  An employee may not simultaneously take leave under the FFCRA and employer policies, unless the employer agrees to supplement up to the employee’s normal earnings.  This must be a mutual decision.

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