COVID-19: DOL Issues Additional FFCRA Guidance

U.S. Department of Labor Announces Expanded FFCRA Guidance, including Information Corrections

By: Kyle McClain

March 27, 2020

Last night, the United States Department of Labor (“DOL”) announced additional guidance regarding the Families First Coronavirus Response Act (“FFCRA”). The DOL’s news release focuses on the release of its new FFCRA notice posters which I previously posted about and goes on to state that the guidance also “augments” information published by the DOL on Tuesday, March 24, 2020. The most important part is a revised version of its “Questions and Answer” document which initially included 14 sets of questions and answers and has now been revised to add an additional 23 sets of questions and answers (numbers 15-37). For employers, there is no substitute for reading the complete updated Q&A document, but some of the most relevant topics are addressed below.

Also important is that the DOL also “augmented” its Fact Sheet for Employers and Fact Sheet for Employees. These updates revise certain information originally provided in such Fact Sheets which some might call ambiguities or inconsistencies and others might call errors. Notably, as I commented on in my post on the “first round” of guidance, this includes distinguishing between “paid sick leave” available under the Emergency Paid Sick Leave Act (“EPSLA”), and “paid expanded family and medical leave” available under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Please note, however, the Fact Sheets AND THE NEW NOTICE POSTERS contain an error regarding the aggregate maximum compensation available under the EFMLEA. The aggregate maximum under the EFMLEA is $10,000 (not $12,000 as stated in the guidance and posters).

Furloughed, Laid Off, and Reduced Work Schedule Employees

Q&A 23-28 make clear that if an employer “sent [an employee] home and stops paying [the employee] because it does not have work for [the employee] to do,” the employee is not eligible to receive paid sick leave or expanded family and medical leave. This applies no matter when the employee made/makes the decision to furlough, lay off, or reduce the work schedule of an employee. Q&A 28 explains: “This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.”

No Double Payments

Q&A 31 clarifies that an employee must choose only one type of leave to be compensated by between paid sick leave (under the EPSLA), expanded family and medical leave (under the EFMLEA), and paid leave already provided by an employer, with the exception that an employer may allow an employee to use more than one at a time. For example, an employer may, but is not required to, allow an employee receiving 2/3 of the employee’s compensation under the FFCRA to use employer-provided paid leave to supplement the remaining 1/3 of the employee’s compensation. (Q&A 33 specifies, however, that an employer cannot require an employee to use employer-provided paid leave to supplement FFCRA leave.)

Paid Leave under the FFCRA is In Addition To Employer-Provided Paid Leave

Q&A 32 states that “[p]aid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees.” Therefore, employers cannot use leave the employer previously provided to employees to satisfy the requirements of the FFCRA.

Recordkeeping and Information Requests

Q&A 15 and 16 say that for leave taken under the Emergency Paid Sick Leave Act (“EPSLEA”) part of the FFCRA, an employer must require, and an employee must provide, appropriate documentation in support of the reason for the leave, including:

    • 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.

Such documentation requirement includes when leave is taken under both the EPSLEA and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for the covered reason of caring for a child whose school or place of care is closed, in which case, documentation may include “a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.” The guidance suggests that this information will be important for private employers who intend to claim a tax credit for the payment of sick leave wages under the FFCRA.

Can Paid Sick Leave Be Taken Intermittently?

Q&A 20, 21, and 22 discuss using paid sick leave intermittently. The guidance says that for an employee teleworking and needing either paid sick leave or paid expanded family and medical leave for any covered reason, or an employee working at the employee’s regular worksite and only needing leave because the employee’s child’s school or place of care is closed, the employee can use paid leave intermittently only if the employer gives its permission or otherwise allows it. To the contrary, an employee working at the employee’s regular worksite and needing paid sick leave for qualifying reasons related to the employee being sick with COVID-19 or possibly being sick with COVID-19 or caring for an individual who is sick with COVID-19 or possibly sick with COVID-19 cannot take such leave intermittently.

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.

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