Employers have continued to struggle with questions over how to implement the paid sick leave and paid expanded FMLA requirements of the Families First Coronavirus Response Act (FFCRA), which becomes effective April 1. Although formal regulations have yet to be published, the Department of Labor has updated its guidance to answer some additional critical questions. Here is a summary of the key takeaways:
Required Documentation
An employer may require that an employee taking leave under the Act, including for child care, provide documentation in support of such leave. DOL indicates that the documentation should include whatever will be sufficient under IRS regulations so that the employer can claim the available tax credits, suggesting that additional IRS guidance will be forthcoming.
When Is an Employee Able to Telework?
An employee may telework when his or her employer permits or allows the employee to perform work while at home or at a location other than the normal workplace.
When Is an Employee Unable to Telework?
DOL states that an employee is unable to telework when a COVID-19 qualifying reason prevents the employee from working or teleworking. With respect to leave for childcare, this suggests that simply enabling telework will not justify denying leave under the Act if the individual employee explains, for example, that he or she is required to care for and educate his or her three children who are not in school. We expect additional guidance (and likely many more questions) concerning this aspect of the new paid leave provisions.
Intermittent Leave
Employees may take paid sick leave or paid expanded FMLA leave on an intermittent basis for child care purposes if the employer allows it. In such a situation, employers and employees may also agree for intermittent sick leave while teleworking, and the same applies for leave to care for a child whose school or daycare has closed.
DOL provides the following example: “You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.”
The DOL encourages employers and employees to collaborate to achieve flexibility.
Is Leave Required if the Company Closes?
f an employer closes because of business reasons or a governmental order (either before or after the Act becomes effective), the employee is not eligible for paid leave under the Act. Employees who are furloughed likewise are not eligible for paid leave. In either case, the employee may be eligible for unemployment benefits.
Paid Leave to Makeup a Reduction in Hours?
Employees cannot take paid leave under the Act if his or her hours are reduced as a result of the COVID-19 pandemic. This is because the employee is not being prevented from working because of one of the COVID-19 qualifying reasons.
Use of Company-Provided Leave as a Supplement
Employers may permit employees to use company-provided leave to supplement earnings if they are being paid at 2/3 of their regular rate for leave required under the Act. For example, the employee could utilize 1/3 day of available PTO concurrently on days in which the employee takes paid leave under the Act for which he or she is entitled to 2/3 pay. But employers cannot required employees to supplement paid leave under the Act with existing company-provided leave.
Tax Credits for Excess Leave
An employer can compensate its employees on paid leave in excess of what’s required under the Act, but it will only receive a tax credit for those amounts provided for in the FFCRA.
Group Health Coverage
If an employee has elected to accept health coverage provided under an employer group health plan, the employee is entitled to coverage while on paid leave under the Act on the same terms as if he or she continued to work.
The DOL’s guidance is available here.
