By Blerina Kotori, Clay Creps, and Christopher Morehead
Late last night, March 26, 2020, the Department of Labor issued its second guidance on administering the emergency paid sick leave (“EPSL”) and emergency family medical leave (“EFML”) of the Families First Coronavirus Response Act (“FFCRA”). This new guidance appears in Questions 15 through 37 of the previously released Q&A.
As a reminder, the first Q&A focused on employer coverage, rate of pay, and other basic questions. This second Q&A addresses more complex questions, including whether EPSL and EFML can be used intermittently, status of FFCRA protections when employees are laid off or furloughed or the employer closes altogether, supplementing payments during EPSL and EFML, and documentation requirements. We summarize the crucial answers in this tip but, as before, encourage employers to review this new guidance in detail as they prepare for its upcoming effective date next week, on April 1.
- What documentation must employers require for employees’ use of EPSL and/or EFML?
Employers must require employees seeking to use EPSL and/or EFML to provide appropriate documentation to support the reason for leave, including: the employee’s name, qualifying reason for requesting leave, a statement that the employee is unable to work or telework for that reason, and the date for which the leave is requested.
Importantly, documentation of the reason for the leave must also be provided, which may include: the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. For example, depending on the reason and type of leave, the employee may provide copies of federal, state, or local quarantine or isolation orders, notice of the school closure (as posted on the school’s website or in a newspaper), emails from school officials or employees advising of the closure, and/or written documentation by the healthcare provider advising that the employee is self-quarantining due to COVID-19 concerns.
Documentation must be required even when an employee seeks to use EFML for the first 10 workdays, which are unpaid.
As a reminder, however, the CDC and other sources have cautioned employers against insisting on healthcare provider notes so as not to overwhelm the healthcare system. For that reason, we recommend that employers accept alternative documentation where available, including the employee’s own written (or emailed) statement.
FMLA’s regular certification rules and procedures remain in effect. For example, if an employee takes leave beyond the initial two weeks of EPSL because their medical condition related to COVID-19 turns into a serious health condition, the employees must continue to provide medical certifications under the FMLA if required by the employer’s regular policy.
Notably, employers should retain records of employee-provided documentation for their records if they intend to claim a tax credit under the FFCRA.
- May an employer take EPSL and/or EFML intermittently?
EPSL may not be taken intermittently if the employee must work in the employer’s premises (i.e., an employee is not teleworking) and the leave is needed because the employee is subject to a quarantine or isolation order, has been advised by a health care provider to self-quarantine, is experiencing symptoms of COVID-19, is caring for an individual who is subject to such orders or advice; or the employee is experiencing any other substantially similar condition specified by the Secretary of HHS. In these situations, EPSL must be taken in full-day increments. If the employee no longer has a qualifying reason for EPSL before the leave is exhausted, the employee may save it for a later time (until December 31, 2020).
On the other hand, if an employee is able to telework, EPSL may be taken intermittently if the employee is unable to work normal hours (due, for example, to needing to care for a child during a COVID-19-related school closure). The employer must agree to the arrangement. Arrangements may include intermittent use of EPSL during a workday or, as an alternative example, taking two full days of EPSL throughout the workweek while teleworking three days. The DOL specifically encourages employers and employees to collaborate to achieve maximum flexibility.
Regarding EFML, an employee may take it intermittently only if the employer agrees. The employer and employee can agree to any particular increment of intermittent leave.
- If the employees are furloughed, laid off, or terminated before or after April 1, 2020, or the employer closes their business before or after April 1, 2020, are the employees entitled to EPSL and/or EFML?
No. EPSL and/or EFML is not available to an employee on furlough, temporary or permanent layoff, or reduced work hours, or where a business has to close either temporarily or permanently because it does not have work for employees to perform or because of a governmental order. It does not matter whether the job loss or loss of hours occurs before or after April 1, 2020, or whether an employee is already on EPSL or EFML when the loss occurs. For employees already on leave, they are only entitled to leave benefits up to the date of the job loss or closure.
- Do Shelters in Place (“SIP”) or Stay at Home (“SAH”) Orders qualify as reasons for EPSL and/or EFML?
It is still unclear, but, based on this Guidance, standard SIP and SAH orders do not. As described above, the DOL states that employees are not entitled to EPSL and/or EFML if the business is closed pursuant to a federal, state, or local order. This suggests that the DOL would not extend EPSL and/or EFML in these situations. The answer remains unclear, however, and very likely depends on the details of the SIP or SAH order. We urge employers to exercise caution, particularly in light of applicable state or local sick leave laws. For example, in Oregon, BOLI has indicated that an employee who wishes to self-quarantine may be entitled to use available Oregon Sick Leave, which is fully paid up to the amount provided by the employer or mandated by law, whichever is greater. Before denying EPSL and EFML in such situations, we recommend that you consult with your employment counsel or any of the attorneys in our group.
- Can an employer supplement an employee’s wages during EPSL and/or EFML to allow them to earn their full compensation?
Yes, but only if both the employer and employee agree. An employer cannot require an employee to use EPSL/EFML and/or any employer-provided leave policies. The sequence of such leaves is in the employee’s sole discretion. Employers should note, though, that any employer-provided supplementation would not be eligible for tax credit under the FFCRA.
UPDATE: On April 2, we published DOL Announces Temporary Rules for FFCRA which provides updated information on this topic.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.
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