U.S. DOL Issues Preliminary COVID-19 Leave Guidance

Horton Law PLLC

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law. Among other provisions, the law mandated two new forms of leave for employees of private employers with less than 500 employees and all government entities. The U.S. Department of Labor has the authority to issue regulations interpreting these leave requirements. Before releasing formal rules, the DOL has posted initial COVID-19 leave guidance on its website.

Fact Sheets

The DOL has created “Fact Sheets” targeting both employees and employers. These documents are available in English and Spanish and are available through these links:

Employee Paid Leave Rights

Employer Paid Leave Requirements

The fact sheets primarily outline the parameters of the law. For our full summary of the legislation, click here.

Questions and Answers

The Wage and Hour Division of the DOL has also created a “Questions and Answers” page as part of its COVID-19 leave guidance.

For simplification, the DOL is referring to the two new forms of leave as “paid sick leave” and “expanded family and medical leave.”

“Paid sick leave” refers to paid leave under the Emergency Paid Sick Leave Act. Eligible employees can receive up to two weeks of paid leave for absences related to COVID-19 (the novel coronavirus).

“Expanded family and medical leave” refers to paid leave under the Emergency Family and Medical Leave Expansion Act. It is a new form of leave under the Family and Medical Leave Act (FMLA) that allows employees to take up to 12 weeks of leave to care for a child whose school has closed or whose childcare is unavailable due to COVID-19. The last 10 of these 12 weeks would be paid leave for eligible employees.

The DOL seems to be updating this Q&A page periodically. It has already grown from 14 questions at launch on March 24th, to 37 questions on March 26th, as of the writing of this article.

The first question addresses when the leaves become available. Although most observers initially read the law to take effect on April 2nd, the DOL states that these new leave requirements take effect on April 1, 2020. Unless extended, these leave provisions will expire as of December 31, 2020.

Click to read: DOL Families First Coronavirus Response Act Questions and Answers

Here are a few notable clarifications in the COVID-19 leave guidance Q&As:

What records do employers need to keep to document these leaves?

Because employers can receive tax credits to offset the wages they pay to employees during these leaves, they must be able to demonstrate that the employee qualified for the leave under the law.

For paid family leave, the DOL says “you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: 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 of the reason for the leave will also be necessary.

For expanded family and medical leave, “you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests.”

The IRS’s initial statement regarding the tax credits accompanying these paid leaves is available here.

What documentation does the employee need to provide to take these leaves?

For paid sick leave, supporting documentation “may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19.”

For expanded family and medical leave, an employee could provide “a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider.”

Can employees take intermittent leave?

Yes, if their employer allows it. The guidance says employees can take the leave in any time increment that the employer permits. But, then it limits that position.

Unless the employee is teleworking, paid sick leave is only available in full-day increments, except where the leave is to care for a child who is out of school/child care due to COVID-19.

Do employees have a right to these leaves if their worksite closed before April 1, 2020?

No, but they might be eligible for unemployment benefits.

What if the employer closes down while an employee is taking paid sick leave or expanded family and medical leave”?

The employer must pay for any leave before the closing. The employee is not eligible for paid leave after that, but they may become eligible for unemployment benefits.

Employee Rights Poster

By April 1, 2020, covered employers must post an employee rights notice regarding these new forms of leave in the workplace.

The DOL has prepared the poster, which is available here.

Future Developments & Compliance

The COVID-19 leave guidance now available on the DOL’s website references “forthcoming regulations.” These will likely go into even more detail on some aspects of the new laws. The regulations will also carry more legal authority than this preliminary website guidance. The DOL has suggested the regulations would come out sometime in April, despite the April 1st effective date.

Perhaps due to the need to issue the formal regulatory guidance, the DOL has indicated that it will not enforce these new leave requirements until April 18, 2020. However, employers who violate the law before then may still face some consequences. Employers who committed violations in early April despite “reasonable” actions “in good faith” will still have to repay employees who should have received paid leave as soon as practicable. The DOL may later seek additional penalties, however, for employers who willfully violated the leave requirements even before the DOL begins enforcement.

Consequently, employers who might be subject to these new requirements must get familiar with them and plan to comply as well as possible by April 1st.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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