The U.S. Department of Labor (DOL) just released significant FAQs that provide further guidance to employers interpreting and preparing to implement emergency paid sick and paid family leave under the Families First Coronavirus Response Act (FFCRA), which goes into effect on April 1, 2020. A summary of the key highlights of these new FAQS is outlined below.

Employers Must Provide FFCRA Benefits in Addition to Existing Leave Policies

• If an employee is eligible to take emergency paid sick or paid family leave under the FFCRA, that leave must be provided in addition to leave provided under an employer’s existing leave/paid time off policies.
• If an employee is eligible for both FFCRA benefits, as well as paid leave under an employer’s existing policy, an employee must choose between the existing paid leave (i.e. standard, PTO, vacation or sick leave), or paid sick and family leave under the FFCRA, unless the employer decides to allow those leaves to run concurrently. In other words, an employee cannot take leave under the FFCRA (which has a cap on maximum daily wages) and supplement that leave with paid time off under existing policies in order to reach their full daily pay rate, except for where the employer expressly permits employees to do.

Employees Are Not Entitled to FFCRA Benefits Following Furlough/Closed Worksite

• If an employer places employees on furlough status due to lack of work, those employees are not entitled to paid sick or paid family leave under the FFCRA.
• Similarly, if an employer has closed its worksite due to lack of business or because of a federal, state or local government directive, employees who are unable to work as a result of the closure will not be entitled to receive paid sick or paid family leave under the FFCRA once the worksite has closed. This rule applies even if the closure occurs after April 1, 2020, and even if the employee has already requested leave prior to the closure. Employees may instead be eligible for unemployment benefits at that time.

Intermittent Leave Is Permitted for Certain Types of Paid Sick and Family Leave

• If an employee is unable to telework according to their normal schedule due to a qualified reason under the FFCRA, the employer and employee may mutually agree to permit the employee to take paid sick leave or paid family leave intermittently while teleworking. For example, if an employee is teleworking, but cannot work a full schedule because the employee needs to care for a child due to school or childcare closure related to COVID-19, the employer can agree to let the employee take intermittent leave to address their protected childcare needs.
• Employees who are still reporting in-person to a worksite may take paid sick leave in full day increments, including intermittent leave, however intermittent leave cannot be taken if the employee: (1) is subject to a Federal, State or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) 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) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Employee Documentation Required Under the FFCRA

• If an employee takes paid sick leave under the Emergency Paid Sick Leave Act, employers are required to have the employee provide appropriate documentation in support of the reason for leave.
• This documentation should include: (1) the employee’s name; (2) the qualifying reason for requesting leave; (3) statement that the employee is unable to work or telework; (4) and the date(s) for which leave is requested. This includes documentation of the reasons for leave, such as the source of any quarantine or isolation order, notice of school closure, or the name of the employee’s health care provider who instructed the employee to self-quarantine.

Notices/Poster to Employees About New Benefits

• The DOL has released posters for covered employers (including private sector and federal employers) to provide to employees regarding what paid sick and paid family benefits they may be entitled to receive under the FFCRA.
• According to the DOL FAQs on notice requirements, each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

Separately, for private employers with fewer than 50 employees looking to take advantage of the exemption to FFCRA benefits because they would “jeopardize the viability of [your] business as a going concern,” the DOL has stated that more detail will be provided in forthcoming regulations. We are also still waiting for additional guidance on exclusions for covered health care providers. Stay tuned for updates on these exemption requirements, which will be posted as soon as it becomes available.