Department of Labor Provides Further Guidance on the FFCRA

In our prior blog posts (which can be viewed here and here) concerning the Families First Coronavirus Response Act (FFCRA), we summarized the new federal legislation extending leave benefits to employees affected by the spread of COVID-19, and stated that further guidance to employers would be forthcoming from the Department of Labor (DOL).

The DOL has recently updated its prior answers to some frequently asked questions, bringing clarity to certain areas of the new law. We have summarized the new guidance below.

Is an employee who is not working eligible for FFCRA leave benefits?

• No. If, prior to or after the FFCRA's effective date (April 1, 2020), an employer sends an employee home and stops paying due to lack of work (whether the worksite actually closes or not - and whether or not the closure is temporary or permanent), that employee is not eligible for Emergency Paid Sick Leave (EPSL) or Public Health Emergency Leave (PHEL) under the FFCRA (but may be eligible for unemployment insurance benefits).
• If the place of employment closes while an employee is receiving EPSL or PHEL benefits, the employee will no longer be entitled to these benefits as of the date of closure (but may be eligible for unemployment insurance benefits).

This appears to address the question that many employers have had concerning the legal effect of the various "shelter in place" orders issued by governors in a number of states. The DOL's guidance indicates that, if businesses have temporarily closed or significantly reduced workers' hours as a result of those orders, employees are nonetheless ineligible for EPSL benefits.

If an employer reduces scheduled work hours, can an employee use FFCRA leave benefits to supplement reduced hours?

No. If an employer reduces work hours due to lack of work, an employee may not use EPSL or PHEL to compensate for the reduction in hours. However, the employee may use EPSL or PHEL if a COVID-19 qualifying reason prevents the employee from working a full schedule.

Can employees use existing leave entitlements (e.g., PTO) concurrently with EPSLA and PHEL?

Employers are permitted - but not required - to allow employees to use existing leave entitlements to supplement paid leave under PHEL and EPSLA up to their regular rate. Employers may not mandate that employees use existing leave entitlements in this manner.

Can employers supplement employee pay under PHEL and EPSLA, without reducing employee's accrued leave entitlements?

Yes. Employers may voluntarily supplement the pay an employee receives under PHEL and EPSLA, but the employer will not receive a tax credit for any amount that exceeds the statutory entitlement.

Can employees collect unemployment insurance benefits if they are also receiving EPSL or PHEL?

No. However, because each state has its own set of rules, employees should contact their state workforce agency or state unemployment insurance office for specific questions about eligibility.

Are employers required to maintain healthcare coverage for employees who elect to take EPSL and/or PHEL?

Yes.

Can employees take EPSL intermittently?

It depends.

• If an employee is still reporting to the worksite, EPSL taken for any reason other than childcare must be taken in whole day increments until the sooner of:
  
  1. The employee uses the full amount of the leave, or
  2. The employee no longer has a qualified reason for taking leave.

• If an employee is still reporting to the worksite, the employee and employer can agree to allow intermittent EPSL, including partial days, for childcare. The DOL encourages employers to be flexible but ultimately it is for the employer and employee to determine if an intermittent schedule is feasible.
• If an employee is teleworking, EPSL may be taken incrementally if the employer and employee agree, and may be taken in any increment.

Can employees take PHEL intermittently?

Employers are encouraged, but not required, to allow intermittent PHEL.

Must employers require documentation from employees to support their requests for EPSL and/or PHEL?

• Yes. Employers must require employees to provide them with documentation in support of the reason for the leave, including:
  
  • The employee's name;
  • Qualifying reason for requesting leave (e.g., a copy of the federal, state or local quarantine or isolation order related to COVID-19, the name of the health care provider who has advised the employee to self-quarantine, 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);
  • Statement that the employee is unable to work, including telework, for that reason; and
  • The date(s) for which leave is requested.

• In addition to retaining these records for recordkeeping purposes, employers should retain these records if they intend to claim a tax credit. Employers should consult applicable IRS 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.

What does it mean to be "unable to work for COVID-19 related reasons"?

• An employee is unable to work for COVID-19 related reasons when the employer has work for the employee (either at his or her normal worksite or through telework) and the employee cannot perform the work because of one of the COVID-19 qualifying reasons identified in the EPSLA or PHEL.
• If an employee is working his or her normal number of hours but outside of his or her normal schedule, then the employee is able to work and is not eligible for EPSLA or PHEL.

Can an employer that is part of a multi-employer collective bargaining agreement satisfy its obligations under the FFCRA by contributing to a multi-employer fund, plan, or program?

Yes, so long as the employer is:

• Contributing to its multi-employer fund, plan, or program in accordance with its existing multi-employer collective bargaining agreement and bargaining obligations;
• Basing its contributions on the amount of EPSL or PHEL each employee is entitled to under the FFCRA; and
• Allowing employees to obtain their pay from the fund, plan, or other program for leave taken pursuant to EPSL or PHEL.

Can an employer that is part of a multi-employer collective bargaining agreement comply with EPSL or PHEL in alternative ways, other than contributing to a multi-employer fund, plan, or program?

Yes, provided the employer is acting in accordance with its existing multi-employer collective bargaining agreement and bargaining obligations.

We will continue to update you as additional guidance from the DOL becomes available.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.