For the record, I’m not getting much sleep this week, thanks to the Department of Labor. But it’s evident the DOL isn’t getting much sleep either.
Late last evening, the DOL issued a second round of Q&As (FAQs #15-37) aimed at helping employers administer emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) as part of the Families First Coronavirus Response Act (pdf), which provides initial relief to American workers in the wake of the coronavirus pandemic.
The first Q&A issued on Tuesday, March 24 focused largely on employer coverage and pay calculations.
Last night, however, the DOL delved into even meatier issues. In a nutshell, DOL generally confirmed the following:
- Employees can be required to submit appropriate documentation to verify their need for EPSL and FMLA+. Documentation includes quarantine or isolation orders, doctor’s recommendations, or a notice of a school or place of care closure (FAQ # 16).
- EPSL and FMLA+ generally must be taken in full-day increments (FAQ # 21).
- EPSL and FMLA+ can only be used intermittently for child care reasons, and only then with employer consent (FAQs #20-22).
- Shelter in Place and Business Closure Orders Likely Do Not Support the Need for Leave (FAQ #27).
- Employees are not eligible for EPSL or FMLA+ during furloughs or temporary layoffs (FAQs #23-28).
- Employees are not entitled to “top off” their FFCRA payments with accrued paid time off to get to 100% of pay unless the employer agrees (FAQ #31).
- Employers cannot require employees to “top off” their FFCRA payments with accrued paid time off to get to 100% of pay unless the employee agrees (FAQs #32-33).
Let’s go through these nuggets one at a time:
Required Documentation (FAQ #16)
For EPSL, the DOL advised that the employer must require the employee to provide “appropriate documentation” identifying the reason for requesting leave, a statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested.
According to the DOL, appropriate documentation includes:
- The source of any quarantine or isolation order and may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee.
- The name of the health care provider who has advised the employee to self-quarantine, including, for example, written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.
EPSL and FMLA+
If an employee takes EPSL and/or FMLA+ to care for his or her child whose school or place of care is closed due to COVID-19, employees again must provide “appropriate documentation” in support of leave. Examples 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
Retaining the documentation: The DOL advises employers to retain the documentation if they intend to claim a tax credit under the FFCRA for the paid leave provided under EPSL or FMLA+.
Telework Still a Bit Murky (FAQs #17-18)
The DOL indicates that, on one hand, an employee can telework when the employer permits or allows the employee to perform work while he is at home or at a location other than the normal workplace. On the other hand, the agency also finds that an employee is unable to telework if the employer has work for the employee but the employee is unable to perform the work because of one of the COVID-19 reasons set forth in the EPSL or FMLA+ prevents the employee from being able to perform that work.
Left in the balance, however, is precisely who is responsible for deciding whether the employee can telework or not on any given occasion. The DOL appears to encourage this to be a joint decision between employee or employer. As DOL puts it bluntly in FAQ #18:
If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
Increments of Leave (FAQ #21)
As the default rule, DOL takes the position that EPSL and FMLA+ generally must be taken in full-day increments, and once the employee begins taking paid leave under EPSL or FMLA+, the employee must continue to take paid sick leave each day until the employee either: 1) uses the full amount of paid sick leave; or 2) no longer has a qualifying reason for taking EPSL or FMLA+. Notably, DOL’s motivation to insist on full-day increments is based on the intent of EPSL and FMLA+, which is to provide “such paid sick leave as necessary to keep [the employee] from spreading the virus to others.”
Intermittent Leave is Limited (FAQs # 20-22)
As highlighted in an article I drafted with my Littler colleagues earlier today, the DOL provides generally that employees and employers may agree to intermittent and incremental use of emergency paid sick leave (EPSL) and emergency paid Family and Medical Leave benefits (FMLA+), but then seems to divide the remaining guidance into two situations—whether the employee is teleworking, or working onsite.
For employees who are teleworking, whether taking time off under EPSL or FMLA+, employer and employee may agree to intermittent leave for any of the covered reasons. But for employees who are working on the employer’s premises, intermittent EPSL is only permitted for employees who are taking leave for school closures or childcare unavailability (again, only if the employer agrees). Employees taking EPSL for one of the other five reasons under the Act must take such leave in full-day increments (because the intent of the FFCRA is to prevent employees who may be ill or caring for those who are ill from possibly spreading the virus to other individuals in the workplace).
Shelter in Place and Business Closure Orders Likely Do Not Support the Need for Leave (FAQ #27)
Although it didn’t carve out a specific question for these types of orders, the DOL appears ready to deny EPSL to those covered by sweeping shelter in place and business closure orders being issued at the state and local levels. See its commentary in FAQ #27:
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.
Similarly, in FAQ #28, the DOL states:
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 language seems pretty clear in denying EPSL to those covered by shelter in place and business closure orders at the state and local level.
Paid Leave not Available for Furloughs and Temporary Layoffs (FAQs #23-28)
If an employee’s work site closes (whether the employer voluntarily closes or does so as a result of a state or local order), DOL now makes clear that employees cannot take leave under EPSL or FMLA+.
Simply put, EPSL or FMLA+ is not available to an employee on furlough, temporary layoff, reduced work hours, or who actually has been laid off. It does not matter whether: 1) the closure occurs before or after the law takes effect on April 1, 2020; 2) an employee is on leave when closure occurs; 3) an employer furloughs an employee; or 4) the work site temporarily closes and the employer says it will reopen in the future.
Case closed. In these situations, the only pay available to the employee is unemployment compensation benefits.
“Topping Off” Paid Leave is Prohibited unless Both Sides Agree (FAQs #31-33)
One of the questions remaining after EPSL and FMLA+ were enacted was how an employee’s accrued paid leave through an employer’s policies would be treated along with EPSL and FMLA+. The DOL put this question to bed.
Here are three key rules to keep in mind as confirmed by the DOL:
- For the two weeks (up to 80 hours) of EPSL, the employee has the sole discretion to use EPSL or any accrued paid leave through the employer. The employer cannot dictate what leave is used during this period.
- The employee cannot “top off” EPSL or FMLA+ with his or her own accrued paid leave (through an employer’s plan or policy) unless the employer specifically agrees.
- Conversely, the employer cannot require that an employee “top off” EPSL or FMLA+ with his or her own accrued paid leave (through an employer’s plan or policy) unless the employee specifically agrees.
“Top off” in this context means that the employee would use 1/3 of a paid leave day to “top off” any leave that is provided at 2/3rds pay under EPSL or FMLA+ so that the employee would receive 100% of their regular salary.
A Word about Group Health Benefits
Finally, per DOL, an employee’s group health benefits must be maintained on the same terms for FMLA+ as if the employee had continued working. Also, if an employee maintains family coverage, an employer must maintain this coverage, too.
For EPSL, health benefits also must be maintained. DOL further notes that employers “cannot establish an eligibility rule or set an individual’s premium or contribution rate based on whether the employee is actively at work unless an absence from work due to any health fact is treated as being actively at work for plan or health insurance coverage purposes.”
What’s Left to Be Answered? There still is much to be addressed by DOL. For starters:
- It’s still not clear from yesterday’s guidance who gets to make the ultimate call on whether the employee can telework and what happens if/when the employee objects to telework. We could use more guidance there.
- What rules will DOL apply to exempt small businesses with fewer than 50 employees when the law’s requirements would jeopardize the viability of the business?
- Will DOL give guidance to employers with fewer than 25 employees as to how they comply when they cannot return an employee to an equivalent position.
For now, though, with the DOL’s pronouncements about intermittent leave, furloughs, and topping off practices, employers will generally be pleased with this second round of FAQs.