DEPARTMENT OF LABOR PROVIDES ADDITIONAL GUIDANCE ON FAMILIES FIRST CORONAVIRUS RESPONSE ACT

DEPARTMENT OF LABOR PROVIDES ADDITIONAL GUIDANCE ON FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The employee leave provisions of the Families First Coronavirus Response Act (the “FFCRA”) take effect this Wednesday, April 1, 2020. 

As a quick recap, the leave provisions are set forth in the Employee Sick Leave Act (the “Sick Leave Act”) and the Emergency Family and Medical Leave Expansion Act (the “Emergency FMLA Act”).  Under the Sick Leave Act, employees may be eligible for up to 80 hours of paid sick leave if they are unable to work or telework for one or more of the designated reasons relating to the coronavirus.  The Emergency FMLA Act allows eligible employees to take leave under the FMLA for up to 12 weeks (the first 2 weeks are unpaid; the remaining 10 weeks are paid), in order to care for a child whose school or daycare has been closed due to an emergency relating to the coronavirus declared by a federal, state, or local authority.  The FFCRA applies to private sector employers with fewer than 500 employees and all public sector employers. 

The Department of Labor (the “DOL”) recently published guidance on both of these new laws through an FAQ.  Below is a summary of some the critical issues addressed by the DOL.  For full access to the FAQ, please visit https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

1.   Unavailability of Paid Leave Where an Employee is Off Work Due to Furlough or Layoff, Whether Such Furlough or Layoff is Before or After April 1, 2020.

When determining whether either the Sick Leave Act or the Emergency FMLA Act applies, an employer must appreciate the critical difference between an employee off work due to lack of work (i.e., furlough/layoff) and an employee off work due to a need for leave related to the coronavirus.  In its FAQ, the DOL makes clear that leave under either law is not available to employees whose employer closes their worksite before or after the FFCRA’s effective date of April 1, 2020.  Similarly, the DOL’s guidance provides that employees furloughed before or after April 1, 2020 due to a lack of work are not eligible to receive leave under either Act.  Such employees will likely be eligible for unemployment benefits, however. 

Of course, if an employer is continuing its business with certain employees expected to continue working (either remotely or at the employer’s location), those employees may be eligible for the paid leave aspects of the Sick Leave Act and/or the Emergency FMLA Act.

2. Further Indication that Whitmer’s “Stay at Home” Order Does Not Trigger an Employee’s Right to Paid Leave Under the Sick Leave Act or the Emergency FMLA Act.

The DOL’s guidance also equates an employer’s decision to lay off workers (for which paid leave is not available, see above) to a decision of a state to issue a “stay at home” order.  According to the FAQ, paid leave is not available to an employee “whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.”  The DOL’s statement that leave under the Sick Leave Act or Emergency FMLA Act is not available to an employee whose worksite is closed pursuant to a Federal, State, or local directive confirms Masud Labor Law Group’s recommendation in a prior update that employers proceed cautiously with respect to treating Governor Whitmer’s “stay at home” Executive Order as one constituting a government “quarantine” or “isolation order” triggering an employee’s right to paid leave under the new federal enactments.

3.   Required Documentation.

The FFCRA makes tax credits available to employers who properly provide paid leave to employees under the Sick Leave Act or the Emergency FMLA Act.  The DOL’s recent FAQs indicate that an employer must obtain and retain adequate documentation from employees taking leave under the Sick Leave Act or the Emergency FMLA Act in order to secure its right to tax credits. 

With respect to leave under the Sick Leave Act, the FAQ specifically provides that employees “must provide [their] employer documentation … as specified in applicable IRS forms, instructions and information.”  At a minimum, such information will include the employee’s name, the qualifying reason for leave, a statement that the employee is unable to work or telework, the leave dates, and documentation supporting the reason for leave, including, for instance, written documentation from the employee’s health care provider supporting the stated reason for the leave. 

With respect to leave under the Emergency FMLA Act, the DOL states that employers can require employees to provide documentation permitted under the rules for conventional FMLA requests.  The DOL states that this could include “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.”

Employers are urged to consult with their tax specialists in regard to all required documentation and completion of applicable IRS forms in order to properly secure their tax credits. 

4.   Required Notice Posting.

Covered employers are required to post a notice of FFCRA’s requirements in a conspicuous place on their premises on or before April 1, 2020.  The notice requirements apply only to employees currently working.  Employers are not required to share the required notice with previously laid off employees.

The notice for posting will made available by the DOL on its website.  Information on the notice is available at https://www.dol.gov/agencies/whd/pandemic.  To ensure that they post the most current version of the notice, employers should visit the website near close of business on March 30, 2020 and print a copy of the published notice for posting on April 1, 2020.   

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