United States: USDOL Provides Guidance Regarding Emergency Paid Sick Leave And Paid Family And Medical Leave Including Advice On Intermittent Leave And Availability Of Benefits To Furloughed Employees

Throughout the past week, the USDOL has continued to update its guidance into how employers will be expected to manage the paid sick and paid family and medical leave benefits, which will become available to eligible workers as of April 1, 2020, the effective date of the Families First Coronavirus Relief Act ("FFCRA" or the "Act").

A model notice which employers can use to discharge their obligation to inform employees of their rights under the FFCRA is available here. No specific Certification or Designation Forms have been provided, so employers may create their own forms for the time being.

A number of questions that have arisen since the passage of the Act have now been answered. One of the best sources of information is the Wage and Hour Divisions Resource Center at https://www.dol.gov/agencies/whd/pandemic. This resource is being updated regularly and should be checked frequently. The Question and Answer resource at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions provides answers to many of the most common inquiries. Some of the newest information follows.

Intermittent Leave

The DOL states that employees who are working at the employer worksite or teleworking may both use sick leave and family and medical leave intermittently as long as both employee and employer agree. The Department encourages employers to be flexible on this point and to work with employees to the extent possible in order to maximize their ability to balance their work and family obligations during this difficult time.

Employees Laid Off or Furloughed Prior to April 1

The newest guidance makes it clear that employees whose worksites have closed and those who were laid off or furloughed prior to April 1 will not be eligible for paid sick leave or expanded family and medical leave. The leave benefits are available only to those employees who are actively at work and whose employers have work for them to do. This supplements the DOL's prior advice that the benefits under the FFCRA are not retroactive. Employers will not be given credit for benefits offered and paid by the employer prior to the effective date.

Supplementing Benefits Offered Under the Act

A number of questions have arisen about the interplay between benefits available under the FFCRA through the employer and through unemployment. The DOL previously indicated that the choice whether to use employer provided benefits or benefits under the Act is the employee's. The newest guidance also states that employees may use employer provided PTO to supplement paid Family and Medical Leave or sick leave being paid at 2/3 of the regular rate of pay only if the employer permits. Employers may voluntarily supplement the required benefits or allow employees to use their PTO to supplement, but no tax credits will be provided for this additional benefit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.