As an update to our post on March 27, the Department of Labor ("DOL") continues to issue various guidance about its implementation of the Families First Coronavirus Response Act (the "FFCRA").
To supplement its prior general, FLSA and FMLA question and answer guidance, on April 23, the DOL published additional general question and answer guidance. The new guidance largely addresses the DOL's temporary regulations, published April 6 in the Federal Register and effective April 2 through December 31, 2020. All of the DOL's guidance relating to the FFCRA is available on its website on the COVID-19 and the American Workplace page. On March 31, The Internal Revenue Service ("IRS") also issued guidance on the process for receiving the tax credits, and noted that it expects to process requests for advances this month.
Although the temporary regulations and additional guidance are broadly consistent with prior guidance, we have included a few items of note below (including additional guidelines on how a small employer can assess whether it is in jeopardy of ceasing to be a going concern and thus deny a leave request from an employee seeking leave to care for a child as the result of school closures or other loss of childcare). We also wanted to note that although it is unclear that it will effectuate any change in the DOL's views, in their letter to the DOL, Patty Murray, Ranking Member, Senate Committee on Health, Education, Labor, and Pensions, and Rosa Delauro, Chair, House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, took significant issue with the DOL's interpretation of: (i) certification and documentation, (2) that the employer have available work for an employee, and (3) governing the intermittent leave provisions, as well as certain definitions.
- Eligibility for emergency
paid sick leave under FFCRA– An employee may take
sick leave under the FFCRA only if the order of quarantine or
isolation, infection with COVID-19 itself, or the need to care for
another prevents him or her from working (including teleworking if
possible under the circumstances, even if the employee is required
to use their own equipment to do so). An employee is not entitled
to sick leave where the employer does not have work for or has
furloughed the employee (furloughed employees also do not count for
purposes of determining whether an employer is subject to the
rules), and in those instances, the employee should look to whether
he or she qualifies for state unemployment insurance. The
regulations provide additional guidance with respect each of the
following instances in which employees are entitled to paid sick
leave under the FFCRA:
- Employees subject to quarantine or isolation orders – Federal, State, or local COVID-19 quarantine or isolation orders preventing employees from being able to work/telework entitle employees to paid sick leave. Quarantine or isolation orders include government orders advising citizens to stay at home or shelter in place; essential workers generally do not fall under this category. However, extenuating circumstances preventing an employee from teleworking, such as a power outage, may entitle an employee paid sick leave.
- Employees advised to self-quarantine by healthcare provider - An employee may not take sick leave under the FFCRA to self-quarantine without (a) seeking a medical diagnosis and (b) being unable to work/telework due to self-quarantine. In addition to individuals who have been told to quarantine or isolate as a result of having or potentially having COVID-19, the DOL clarified that the FFCRA also picks up individuals who have been advised by a health care provider to quarantine because they are particularly vulnerable to COVID-19.
- Employees seeking medical diagnosis of COVID-19 – An employee who experiences symptoms of COVID-19 and cannot work/telework while making, waiting for or attending an appointment for a COVID-19 test may be eligible for paid sick leave.
- Employees caring for another
individual –
- Employees who cannot work/telework due to the need to care for an individual who is (a) subject to government quarantine or isolation order or (b) has been advised to self-quarantine by a health professional may be entitled to paid sick leave. The employee must have a personal relationship with an expectation of care (e.g., immediate family members or a roommate) with the individual in need of care.
- Employees who cannot work/telework due to the need to care for their son or daughter whose (a) school is closed or (b) child care provider is unavailable due to COVID-19 related reasons may be entitled to paid sick leave only if there is no alternative suitable caretaker available (e.g. co-parent, co-guardian who does not themselves need to work).
- Determining compensable time under flexible telework arrangements – The DOL provides additional guidance on the meaning of "telework," clarifying that telework is no less work than if it were to be performed on-site and that employees must carefully track their hours. Furthermore, the DOL noted that its regular continuous workday guidance is inconsistent with the FFCRA only with respect to teleworking employees, such that an employer is not required, for teleworking employees only, to count as hours worked all time between the first and last principal activity performed and may enter into flexible arrangements with its employees, as long as it compensates the employees for all hours actually (tele)worked. The DOL recognizes the need for employers to promote flexible telework schedules enabling employees to tend to family and other responsibilities, such as homeschooling, which may require employees to perform work at unconventional times.
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