Department of Labor Additional Guidance on the Families First Coronavirus Response Act
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The Department of Labor (“DOL”) has updated its guidance regarding the Families First Coronavirus Response Act, providing more answers, but also creating more questions and inconsistencies with prior guidance issued by the DOL.
Field Bulletin- Non-Enforcement Period
The DOL previously announced that it will recognize a 30-day period when, rather than enforcing the FFCRA against employers, the DOL will rather provide guidance to help employers comply with the FFCRA. To be covered under this 30-day non-enforcement period, the employer must be reasonable and act in good faith.
A previous Fact Sheet from the DOL stated that the 30-day non-enforcement period would begin on the effective date of the Act, April 1st. However, a DOL Field Bulletin states the non-enforcement period began on March 18th, the date of the Act’s enactment, and ends on April 17th. Hopefully, the DOL will fix this inconsistency to clarify the correct non-enforcement period.
The Field Bulletin also explains how an employer can satisfy the “reasonable” and “good faith” standard during the non-enforcement period. An employer is “reasonable and in “good faith” if the employer remedies any violations, the violations were not willful, i.e. were not done with knowledge or reckless disregard for the Act, and the DOL receives a written commitment from the employer to comply with the Act in the future.
Employer Fact Sheet
In our previous update, we pointed out that the DOL’s Employer Fact Sheet appeared to provide incorrect reasons for when an employee may take expanded family and medical leave. The DOL has fixed this Fact Sheet, which now confirms that an employee may only take expanded family and medical leave because the employee is unable to work or telework because that employee has to care for a child whose school or child-care facility is closed.
Question and Answer Sheet
Records Needed for the New Leave
The Question and Answer sheet now provides new information regarding the records necessary for the leave provided in the Act. An employer must require its employee to provide documentation in support of the reason for leave, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work, including telework, for that reason, and the date for which leave is requested. The employee must also provide documentation supporting the reason for leave, such as the source of the quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. These documents can include copies of any government issued order or written documentation from the health care provider advising the employee to self-quarantine. The DOL guidance also states that the employer should require documentation to support the need for expanded family and medical leave to care for a child whose school or child-care is closed. These documents include orders from the government, notices from the school or daycare, or an email from a school official. This documentation is crucial for employers because the DOL advised that the employer should retain these records in order to use them for tax credit purposes.
The DOL also specified that the certification requirements under the FMLA still apply to an employee who is taking additional leave under the FMLA (beyond the 10 days of paid sick leave) because their COVID-19 related reason has risen to the leave of a serious health condition. Therefore, the employee must provide medical certifications showing that the need for leave has continued beyond the two weeks under the FFCRA’s sick leave provisions.
Ability to Work
The DOL has also clarified how the inability to work, which triggers the need for leave, is defined under the Act. An employee is unable to work if the employer has work for the employee, but one of the COVID-19 qualifying reasons prevents the employee from performing that work, either through normal work circumstances or through teleworking. If the employer and employee have established a different work schedule that allows the employee to work the normal number of hours, then this does not qualify as an inability to work.
Teleworking is satisfied under the Act when the employer allows the employee to perform certain tasks or work certain hours from home or at a location other than the normal workplace. So, an employee is unable to telework when one of the qualifying reasons prevents him or her from working from home or outside the normal workplace. The DOL also recognized that child-care can be a reason an employee is unable to work from home, but to the extent the employee is able to telework while caring for the child, the new leave is not available.
The DOL answered questions regarding intermittent leave under the Act. Generally, the DOL states that an employee can intermittently take both types of leave under the Act. Intermittent leave can be taken in any increment agreed to between the employer and employee. The Department has encouraged employers and employees to be flexible and encourages combining teleworking and intermittent leave agreements.
The DOL’s guidance states that an employee cannot take intermittent leave at the usual worksite for reasons related to (1) the employee’s own COVID-19 quarantine, isolation or symptoms; (2) caring for an individual who is under quarantine or isolation; or (3) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. This is because the employee is required to take the leave for these reasons to avoid spreading the virus to others, so intermittent leave cannot apply. Intermittent paid sick leave or expanded family and medical leave can be taken at the usual worksite to care for a child whose school is closed, provided that the employer and employee agree.
Events Prior to April 1st that Impact Leave
The DOL’s guidance also addressed certain events, such as closures, furloughs, and reductions in hours, and how they impact an employee’s right to leave.
The guidance provides that if an employer closes the worksite, regardless of the date of the closure, its employees are no longer entitled to paid sick leave or expanded family and medical leave. If an employee is on paid sick leave or expanded family and medical leave at the time of closure, then the employee is no longer entitled to either type of leave, and the employer must pay for any paid leave used before the employer closed. Even if the employer intends to reopen in the future, its employees are not entitled to leave during the closure. If an employee is furloughed, then that employee is not entitled to either type of leave under the Act. If an employer reduces an employee’s scheduled work hours, then the employee is not entitled to leave for the hours they are no longer scheduled to work, because they are not prevented from working these hours for a COVID-19 qualifying reason as provided in the Act.
Despite some inconsistencies, this guidance has provided much needed clarification on a number of issues not addressed in the Act itself, including the availability of intermittent leave and the effect of business closures on an employee’s right to take leave. As the DOL provides almost daily updates to the application, enforcement, and effect of the Families First Coronavirus Response Act, it seems that more concern must be given to the inconsistencies in the guidance drafted by the DOL as employers prepare to navigate this new Act.