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More DOL Q&As: Clarifying the Families First Coronavirus Response Act

Another day, another group of Q&As from the U.S. Department of Labor (DOL)! In recent days, the DOL published 20 new Q&As regarding employee benefits and employer obligations under the federal Families First Coronavirus Response Act (FFCRA or Act).

As we’ve written previously, the FFCRA applies to private employers with 499 or fewer employees as well as most public employers, regardless of size. The Act provides, in relevant part, two leave provisions for certain COVID-19 related reasons: (1) the Emergency Family and Medical Leave Expansion Act (EFMLEA), and (2) the Emergency Paid Sick Leave Act (EPSLA). Both provisions require covered employers to pay eligible employees during leave, with the duration and percentage of pay differing by leave reason.

This latest round of DOL Q&As offers new details regarding when these provisions will apply. Here are the highlights of this new guidance.

No Self-Diagnosis or Self-Quarantine

Employees are not entitled to the paid sick leave benefits under the EPSLA without a medical diagnosis or a health care provider advising the employee to self-quarantine. If an employee decides to self-quarantine on their own, without medical advice, the employee is not entitled to the federally mandated paid sick leave benefits, even if suffering from COVID-19 symptoms.

Stay-at-Home Order Sufficient to Trigger EPSLA Benefits

Employees who are unable to work or telework because of a stay-at-home or shelter-in-place order are eligible for paid sick leave under the FFCRA. Two qualifying criteria, however, must be satisfied before the benefits must be paid: (1) the stay-at-home or shelter-in-place order must be issued by a federal, state or local government authority, and (2) the employer must have work for the employee to perform. If the employer does not have work for its employees, perhaps due to a business shut down or reduction in staff, then affected employees are not eligible for paid sick leave benefits and instead need to apply for unemployment insurance benefits.

Caring for an “Individual” With Whom Employee Has a Relationship

One of the reasons for which an employee may request paid sick leave is when the employee is unable to work due to caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine. Use of the term “individual” rather than family member has left employers wondering if employees can collect paid sick leave when caring for neighbors, friends, or just about anyone else. The DOL says no – employees may not take paid sick leave to care for someone with whom there is no expectation of care. Employees may only take paid sick leave to care for an individual who genuinely needs the employee’s care and generally, will include an immediate family member or someone who regularly resides with the employee. This leave reason does not cover care for someone who does not depend on the employee’s care or with whom the employee has no relationship.

Expanded FMLA Only Applies to Employee’s Son or Daughter

The FFCRA expanded “classic” FMLA to permit an employee to take time off when an employee is unable to work and must care for his or her child whose school or place of care is closed due to COVID-19. The DOL clarified that this new FMLA leave reason is only available when the employee must care for his or her own son or daughter. It may not be used to care for someone else’s child or a different family relation. Employers may rely on the existing definition of “son or daughter” as found in the FMLA regulations.

Employee Must Actually Care for His/Her Child During School Closure

In order to take expanded FMLA and/or paid sick leave to care for a child whose school or place of care is closed or unavailable, the employee must actually need to care for the child and be unable to work. The DOL makes clear that employees will not be entitled to take leave if a co-parent, co-guardian, or other child care provider is available to take care of the child during the school closure. In addition, if the employee is able to work or telework despite his or her child’s school closure, the employee is not entitled to the FFCRA leave benefits.

Effect of Workers’ Compensation or Temporary Disability Benefits on FFCRA Eligibility

If an employee is receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan because he or she is unable to work, the employee is not eligible to take either paid sick leave or expanded FMLA as provided under the FFCRA. However, if an employee had returned to light duty and then an FFCRA-qualifying reason causes the employee to be unable to work at their light duty job, then the employee may take paid sick leave or expanded FMLA, as appropriate.

Reasonable, Good Faith Compliance Efforts Will Suffice Until April 17, 2020

The DOL states that it will not bring any enforcement actions alleging a violation of the FFCRA until April 17, 2020, as long as the employer has made reasonable, good faith efforts to comply with the Act. After April 17th, however, the DOL intends to fully enforce violations so employers should get their FFCRA procedures in place quickly.

Stay Tuned

We will continue to update you on new guidance and DOL directives related to the FFCRA and other COVID-19 related leave laws. Things change rapidly so please check back often.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.