Additional DOL guidance on paid sick and paid FMLA provides practical advice

On March 27, the Department of Labor issued additional guidance on the Emergency Paid Sick Leave (EPSL) provisions and the Emergency FMLA (EFMLA) requirements of the Families First Coronavirus Response Act (FFCRA). 

The new Guidance includes questions and answers that address many of the practical issues and concerns that employers have raised related to implementing the FFCRA on April 1. With over 40 additional questions, the guidance covers critical topics such as layoffs/furloughs and use of paid leave, documentation that employers may require for use of paid leave time, whether workers can take paid sick leave intermittently, and whether employers who closed before the effective date of the FFCRA must pay paid sick leave.

A number of the key issues covered in the Guidance are highlighted below:    

Layoffs /furloughs and availability of EPSL and EFMLA paid benefits.  The guidance answers specific questions about the interplay between various layoff/furlough situations and possible receipt of EPSL and EFMLA paid time. 

Layoff/furlough before April 1:

If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?  

No. 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. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or state or local requirements, you are not eligible for unemployment insurance.

Layoff/furlough after April 1:

If my employer closes my worksite on or after April 1, 2020, but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. 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. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Layoff/furlough while using EPSL and EFMLA:

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to 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 the employer was required to close pursuant to a federal, state or local directive. You should contact your State workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Availability of FFCRA benefits to furloughed employee:

If my employer is open, but furloughs me on or after April 1, 2020, can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

If my employer closes my worksite on or after April 1, 2020, but tells me that it will reopen at some time 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. However, 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. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

EPSL/EFMLA and unemployment. The DOL’s guidance makes clear that employee’s may not receive the FFCRA benefits while also receiving unemployment.

The guidance notes, however, that states may have their own set of rules regarding extending partial unemployment benefits to workers whose hours or pay have been reduced. So, employees should contact their state workforce agency or state unemployment insurance office for specific questions about eligibility.

Requesting and documenting Leave. A frequent question raised by employees is what documentation can be required to support EPSL and EFMLA leave requests. 

The DOL’s guidance explains that employees must support leave requests with appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).

Employees must provide documentation supporting the absence, e.g., a copy of the quarantine or isolation order, or written documentation from a health care provider advising self-quarantine. For employees using leave to care for a child, examples of supporting documentation include a notice 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 childcare provider.

Use of EPSL. The guidance indicates that the total number of hours for which an employee can receive EPSL is capped at 80 hours (or for a part-time employee, the number of hours equal to the average hours that the employee works over a typical two-week period).

For an employer that provided paid time off prior to April 1, the guidance also notes that an employer cannot deny an employee the EPSL just because the employer paid that time for a reason identified in the EPSL Act prior to the April 1 effective date. 

Use of EFMLA. The guidance clarifies that the only type of family and medical leave that is paid leave is expanded family and medical leave under the EFMLA when such leave exceeds 10 days. 

Further, the guidance notes that the total amount of FMLA leave available in a 12-month period is 12 weeks. So, if an employee has previously used FMLA for another reason, the amount of expanded EFMLA is what remains of the employee’s 12-week allotment.  The guidance includes this specific example:

For example, assume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.

Documentation and recordkeeping. The guidance provides that employers can require documentation to support the need for both EPSL and EFMLA. 

• Documenting for tax credit. The DOL notes that private sector employers who provide the expanded FFCRA benefits are eligible for reimbursement of the costs of that leave through refundable tax credits. If an employer intends to claim a tax credit under the FFCRA for payment of expanded benefits, the employer should retain appropriate documentation. Further, the employer should consult the IRS’s 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. Notably, an employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
• Documents that employees must provide to support EPSL and EFMLA benefits leave. To support the need for EPSL, employees must provide the documents specified in applicable IRS forms, instructions, and information. 

  Employers may also require employees to provide additional documents to support closing of schools and that childcare is unavailable due to COVID-19-related reasons. The DOL notes, for example, this may include a notice of closure or unavailability from the 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 an employee or official of the school, place of care, or child care provider. Employers must retain this documentation in support of the FFCRA benefits.

Ability to work or telework. The EPSL and EFMLA benefits are available when an employee is unable to work or telework. The Guidance addresses those circumstances:

• When am I able to telework under the FFCRA?

You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

• What does it mean to be unable to work, including telework for COVID-19 related reasons?

An employee is unable to work if the employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.

If the employee and employer agree that the employee will work the normal number of hours, but outside of the normally scheduled hours (for instance 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.

• If employee is unable to telework, is the employee entitled to EPSL or EFMLA?

If the employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take EPSL. 

Similarly, if the employee is unable to perform those teleworking tasks or work the required teleworking hours because a childcare need is unavailable, because of COVID-19 related reasons, then the employee is entitled to take expanded family and medical leave. If the employee is able to telework while caring for their child, EPSL and EFMLA are not available.

Intermittent use of EPSL and EFMLA. Under the standard FMLA, leave time can be taken intermittently.  Employers have questioned whether intermittent use is available for the FFCRA benefits. The guidance addresses this series of questions: 

• Can employees take EPSL or EFMLA intermittently while teleworking?

Yes, if the employer allows it and if the employee is unable to telework their normal schedule of hours due to one of the qualifying reasons in the EPSL. In that situation, the employer and employee may agree that EPSL can be used while teleworking. The same applies to intermittent use of EFMLA. 

The DOL notes that employees may take intermittent leave in any increment, provided that the employee and employer agree.  The DOL also notes that is supportive of voluntary arrangements and encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

• Can employees take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

1. It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
2. You are subject to a federal, state, or local quarantine or isolation order related to COVID-19.
3. You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
4. You are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
5. You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
6. You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either use the full amount of paid sick leave or no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others. 

If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the department is supportive of such voluntary arrangements.

• May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

This post has covered a number of the key issues that employers are facing as the April 1 effective date approaches. For more information, read Families First Coronavirus Response Act: Questions and Answers at on the DOL website.

The McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide additional updates on the DOL’s Guidance and other employment related issues.