Over the weekend, the Department of Labor (“DOL”) issued its third installment of FAQs regarding the Families First Coronavirus Response Act (“FFCRA”). The FAQs now provide answers to fifty-nine questions related to the FFCRA’s paid sick leave and expanded family and medical leave provisions. Within these answers, the DOL has provided interpretations that are largely favorable to employers. Here are a few highlights from the new FAQs:
Employees, whose businesses are closed due to government shutdown order or a “shelter-in-place” order, likely do not qualify for paid sick leave or emergency FMLA leave.
The DOL has stated if an employer is closed before or after April 1 (the FFCRA’s effective date), regardless of whether the closure is due to lack of work or because it is closed “pursuant to a Federal, State or local directive,” an employee is not eligible for paid sick leave or emergency FMLA. This guidance suggests that a government-ordered shutdown or “shelter-in-place” order does not qualify as a “quarantine or isolation order” under the FFCRA. In its response, though, the DOL reminds employees of the ability to seek unemployment in such circumstances.
Paid sick leave and emergency FMLA leave may be allowed on an intermittent basis.
The guidance clarifies that if an employee is teleworking, but unable to telework a normal schedule due to a qualifying reason for paid sick leave or emergency FMLA leave, the employer may agree for the employee to use paid sick leave or emergency FMLA on an intermittent basis while teleworking. With employer consent, an employee may also use paid sick leave or emergency FMLA leave intermittently if an employee is working at the usual work site and the qualifying reason for leave is to care for a child whose school or daycare is closed or unavailable due to COVID-19.
By contrast, paid sick leave is not available intermittently (and must be taken in full-day increments only) if an employee is working at the usual work site and requires leave because he is subject to a quarantine or isolation order, has been advised by a healthcare provider to self-quarantine, has experienced COVID-19 symptoms, or is caring for an individual under these circumstances. This distinction is in place to prevent further spread of the virus to others.
Emergency FMLA is part of, and not in addition to, the 12-workweek total under the FMLA.
For employers already covered under the FMLA prior to the passage of FFCRA, they are required to provide employees with twelve weeks of job-protected leave under the FMLA for serious health conditions, birth or adoption of a child, qualifying military exigencies, etc. The DOL has now clarified that emergency FMLA leave is part of this twelve-week total for covered employers. So, if an employee takes four weeks of emergency FMLA due to a need to care for a child whose school is closed for COVID-19 reasons, the four weeks count against the employee’s total FMLA entitlement and he would only be eligible for eight weeks of FMLA in the remaining 12-month period.
A “health care provider,” who may be excluded from the FFCRA, is much broader than a “health care provider,” who can provide advice on self-quarantine.
The FFCRA provides two references to “health care providers.” On the one hand, the FFCRA states that an employee may be entitled to paid sick leave if he (or an individual he is caring for) has been advised by a “health care provider” to self-quarantine. On the other hand, the FFCRA states that certain “health care providers” may be excluded the paid leave provisions under the FFCRA.
In the FAQs, the DOL provides two separate definitions. A “health care provider,” whose advice can be used to establish paid sick leave entitlement, is a licensed doctor, nurse practitioner, or other health care provider permitted to issue an FMLA certification. However, a “health care provider,” who may be excluded from paid sick leave and/or emergency FMLA, is much broader and includes anyone employed at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs lab or medical testing, pharmacy, as well as similar entities and entities that contract with any of these employers.
The DOL has provided other helpful guidance in these FAQs. To review the latest FAQs on the FFCRA, see FFCRA FAQs.
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