DOL Releases Additional Q&A for Families First Coronavirus Response Act, Effective April 1, 2020

Written by Jeremy Mittman 

On March 27, 2020 the U.S. Department of Labor (”DOL”) published a second series of “Questions and Answers” related to the FFCRA, supplementing the DOL’s initial March 24, 2020 set of Questions and Answers issued on March 24, 2020.  Here are the top six takeaways in the latest Questions and Answers:

1. Furlough = No Paid Leave. If an employer furloughs an employee because it does not have enough work or business for him/her, he/she is not entitled to then take paid sick leave or expanded family and medical leave.  (Question #26)
2. Closures Before April 1. If an employer closed the worksite before April 1, 2020, and stopped paying employees because it did not have work for them, employees cannot receive paid sick leave or expanded family and medical leave.  This is true whether the employer closes the worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.  (Question #23)
3. Reduction of Hours. If an employer reduces employees’ work hours because it does not have work for them to perform, employees may not use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work. This is because employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.  (Question #28)
4. Documentation Needed. To receive paid sick leave, employees must provide employers with documentation as specified in applicable IRS forms, instructions, and information.  Moreover, an employer may require employees seeking paid family and medical leave to care for a child to provide supporting documentation such as a notice of closure or unavailability from the child’s school, place of care, or child care provider. (Question #16)
5. Intermittent Leave. For employees at the worksite (not teleworking), paid sick leave for those sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, must be taken in full-day increments.  Once an employee begins taking paid sick leave for those reasons, he/she must continue to take paid sick leave each day until he/she either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. This limit is imposed because the intent of FFCRA is to provide such paid sick leave as necessary to keep employees from spreading the virus to others.  In contrast, with the employer’s permission, an employee may take paid sick leave intermittently if he/she is (1) teleworking; and/or (2) taking care of a child whose school or place of care is closed because of COVID-19.  (Questions #20, #21)
6. Concurrent use of old and new sick leave. Employees cannot use an employer’s preexisting leave entitlements and his/her FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours, unless the employer agrees to allow him/her to supplement the amount he/she receives from paid sick leave or expanded family and medical leave under the FFCRA, up to his/her normal earnings, with preexisting leave.  (Question #31)

Employers should consult the Questions and Answers for further detail.

Another key question regarding the new federal sick leave pay is whether such leave would be provided to individuals merely subject to a “shelter in place” or “stay at home” order.  The answer appears to be no, because they are not “quarantine or isolation orders.”  On the other hand, Los Angeles County recently did issue quarantine and isolation orders; it is therefore almost certainly the case that individuals subjected to those orders (i.e. who must quarantine and isolate) would be eligible for the new paid sick leave.