In an effort to keep our clients apprised of labor and employment law developments related to COVID-19 and the Families First Coronavirus Response Act, on Friday, March 27 we published a bulletin linking clients to updated “Q and A’s” just issued by the Department of Labor. We encourage clients to review those Q and A’s, but we also want to make some observations regarding some of the more important aspects of the guidance, especially as they may answer earlier questions or ambiguities about the new law and COVID-19. We will keep you informed of any further information which the DOL may promulgate to help address unanswered questions, including anticipated regulations.
1) Both Employers and Employees Have An Obligation To Collect and Provide Documents Substantiating Leave Requests Under the EPSLA and EFMLEA.
In additional guidance issued by the DOL on March 26, 2020, the DOL addressed the types of records employees would need to provide employers in order to substantiate the need for qualifying paid leave under the EPSLA and EFMLEA and that employers subsequently would need in order to claim tax credits. With respect to employees, the guidance instructs that they must provide documents such as copies of any Federal, State or local quarantine/isolation orders related to COVID-19, written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 or notices of closure or unavailability from their 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 from a school official, place of care or child care provider. The DOL also notes that existing certification requirements under the FMLA remain effective if an employee seeks leave for other qualifying reasons under the FMLA, such as when an employee seeks to take leave because her/his medical condition for COVID-19-related reasons rises to the level of a serious health condition.
As for employers, in order to claim the tax credit, they will be required to provide 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 also will be required and employers are instructed to obtain and retain copies of any Federal, State or local quarantine/isolation orders related to COVID-19, written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 or notices of closure or unavailability from the employee’s 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 from a school official, place of care or child care provider. The DOL also instructs employers to consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
2) While Telework Availability is Determined by Employers, Ability to Telework is Determined By Employees (Provided That Inability Is Bona Fide).
Under both the EPSLA and EFMLEA, employees are entitled to leave if they are unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency/COVID-19 precautions. Prior to the DOL’s additional guidance on March 26, 2020, it was unclear whether the determination as to whether an employee was unable to telework was dependent solely upon whether the employer offered telework or whether an employee’s inability to telework was qualifying. The new guidance clarifies that if an employer offers telework, but the employee is unable to telework because s/he needs to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then the employee is entitled to take paid leave under the EPSLA and EFMLEA. However, the guidance also clarifies that if the employee and employer agree that the employee will work the normal number of hours, but outside of the normally scheduled times (i.e., early in the morning or late at night), then the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule. Further, the guidance states that to the extent the employee is able to telework while caring for her/his child, leave is not available.
3) Employers Should Exercise Caution in Combining EPSLA and/or EFMLEA Leave with Employer’s Leave Policies.
According to the DOL, the FFCRA does not mandate or require employers to allow employees to combine FFCRA paid sick leave and/or expanded FMLA leave with their pre-existing employer leave entitlement and run it concurrently for the same hours. Employers may allow employees to do so, however, by allowing employees to supplement or adjust the amounts received under the FFCRA (paid sick leave and expanded FMLA) up to normal earnings, with pre-existing employer provided leave, such as in weeks where they would only receive two-thirds of their pay under EFMLA. But, the decision to approve it is in the discretion of the employer. If an employee wants to use pre-existing leave, and the employer agrees, the employer may supplement or adjust the pay mandated under the FFCRA, up to an employee’s normal earnings, but will not receive a tax credit for the supplemental amount of paid leave. Here, though, we do not believe that an employer absent employee agreement, could downwardly adjust FFCRA amounts and increase an employee’s pre-existing paid leave.
The DOL FAQs make clear that employers are not required to permit an employee to use existing paid leave to supplement amounts received under the paid sick leave and expanded FMLA provisions under the FFCRA. And, further, employers cannot require employees to use pre-existing paid leave whether it be vacation, PTO, or other forms of employer provided paid sick or medical leave. There must be an agreement to do, and we recommend that in such situations, the agreement be in writing.
4) Employers Must Continue to Provide Health Insurance Coverage As Per Plan Policy and Individual Employee Election During EPSLA and EFMLEA Leave.
As with leave taken under regular FMLA provisions, new DOL guidance makes clear that while employees are out on leave under the EPSLA and/or EFMLEA, employers must continue to provide group health coverage consistent with the terms the employee previously elected. Employees must continue to make any normal contributions during their leave period. If an employee does not return to work following the conclusion of his/her protected leave, the terms of the employer’s policy dictate whether it needs to continue providing group coverage or if the employee qualifies for coverage under COBRA.
5) Use of Paid Sick Leave or EFMLA on an Intermittent Basis Will Require an Employer’s Consent.
The most recent set of Q and A’s issued by the DOL address the issue of whether employees may use paid sick leave or expanded family and medical leave on an intermittent basis. If the employee is teleworking, he or she may take such leave on an intermittent basis, but only if the employer agrees to that. If so, the employee may take intermittent leave in any increment of time, but again provided that the employer agrees.
Somewhat different rules apply when the employee is working at the usual worksite, rather than teleworking. In the former case, paid sick leave taken for any of the qualifying reasons, EXCEPT for an employee having to be home to take care of a child whose school or childcare provider has closed, must be taken in full-day increments and not on an intermittent basis. In addition, employees who have been working at their regular place of employment and begin taking paid sick leave (again, other than for child care purposes) must continue to take paid sick leave each day until they either use the full amount of such paid leave or no longer have a qualifying reason to take it.
Finally, employees not teleworking who take either emergency paid sick leave or expanded FMLA leave because of their need to be home to take care of children may only take such leave on an intermittent basis if the employer agrees to that. The DOL appears even more insistent on this consent having to be provided by the employer in the case of employees who are not teleworking. The revised Q and A’s state: “Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule.“
6) Employees Laid Off or Furloughed for Business Reasons – Before or After April 1 – Will Not be Entitled to Paid Leave.
Resolving one of the biggest questions on employers’ minds, the DOL, in Q&A’s 23-28, stated in very clear terms that employees who are laid off or furloughed not because of one of the qualifying leave reasons under the FFCRA, but instead because of a lack of work or business closure, are NOT entitled to either paid sick leave or expanded FMLA benefits. Here are the DOL’s most notable remarks:
* “If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State or local directive.”
* “If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true 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.“
* “If your employer [is open, but] furloughs you because it does not have enough work or business for you [on or after April 1] you are not entitled to then take paid sick leave or expanded family and medical leave.“
* [In answer to the question “If my employer closes my worksite on or after April 1… but tells me that it will reopen it sometime in the future, can I receive paid sick leave or expanded family and medical leave?]: “No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave.”
* And finally, “If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.“
Since legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.