KingSpry | DOL Clarifies Leave Under Families First Coronavirus Act

Department of Labor Releases Regulations to Clarify COVID-19 Leave Entitlements

Posted on April 3rd, 2020
by Keely J. Collins

On April 1, 2020, the Department of Labor released regulations to clarify the leave entitlements under the Families First Coronavirus Response Act (FFCRA).

The following are the answers provided by the regulations to frequently asked questions.

Question: The employer has closed its offices and furloughed employees. Are employees under quarantine entitled to paid leave, even if their positions have been furloughed?

Answer: No. Employees whose positions are otherwise furloughed are not entitled to paid leave, even if they meet the criteria to take paid leave.

Question: Can an employee take FFCRA’s paid sick leave or expanded Family Medical Leave (“FML”) intermittently, or in separate period of time rather than once continuous period?

Answer: Yes, under certain circumstances, and only if the employer agrees. Where an employee requests to use FFCRA’s leaves for childcare reasons related to COVID-19, intermittent leave may be taken in any increment agreed to by the employee and employer. Consistent with common sense, an employee cannot take leave intermittently for a quarantine or diagnosis of COVID-19.

Question: Do employers need to respond to requests for the FFCRA’s leaves with the notices typically required for FML, such as the designation notice and rights and responsibilities notice?

Answer: No, the FFCRA’s regulations do not require the typical notice requirements for FML. Consequently, the Department has not developed FFCRA forms. However, the Department has advised that employers with firmly established FML procedures may prefer to follow their existing practice.

Question: What type of documentation should employers require for the FFCRA’s FML expansion?

Answer: Employers should request the following documentation to support an employee’s use of the FML expansion: (1) the name of the Son or Daughter being cared for; (2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and (3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

Question: Can an employer require two spouses working for the same company to divide the 12-week FML expansion entitlement?

Answer: No, however, the regulations clarify that both spouses are not entitled to utilize the FML expansion at the same time.

Question: If an employee requests leave for a reason that would fit within the FFCRA’s FML expansion, can the employer require the employee to use FML concurrently with any leave offered under the employer’s policies?

Answer: Yes, provided that the employer offers leaves that would be available for employees taking care of children, such as personal leave or paid time off. Employers should note, however, that the portion of the payment counted for FFCRA tax credit purposes is capped at $200 per day, or $10,000 in the aggregate.

Question: Where an employer has already expanded its leave policies to address leaves for COVID-19 emergencies and school closing, does the FFCRA entitle employees to additional leave?

Answer: Yes, employers must offer leave under the FFCRA in addition to leave under existing policies. Under the regulations, “existing employer policy” includes leaves that the employer voluntarily gave for COVID-19 emergencies. However, the regulations explicitly allow employers to amend their policies to terminate the additional paid leave offered as of April 1, 2020, the effective date of the FFCRA.

Question: Can an employee use 80 hours of paid leave with one employer and then, after changing positions, take another 80 hours of paid leave with a new employer?

Answer: No, any one individual employee is limited to a maximum of two weeks (or 80 hours) of paid sick leave. In other words, individuals are entitled to 80 hours total, not 80 hours per job.

We will continue to keep you updated as the law develops.

HR Law Update is a publication of the KingSpry Employment Law Practice Group. Keely Jac Collins is managing editor. HR Law Update is meant to be informational and does not constitute legal advice.