Earlier this week, we reported that the Wage and Hour Division of the U.S. Department of Labor (DOL) issued initial guidance on the Emergency Family Medical Leave Expansion Act and Paid Sick Leave Act provisions of the Families First Coronavirus Response Act (FFCRA). This included two Fact Sheets and a Question and Answer (Q&A) document. While helpful, that initial guidance left many open issues.
Late yesterday (March 26, 2020), the DOL added substantially to its Q&A on the FFCRA. The expanded guidance, which can be found here, sheds light on a number of very important and practical issues facing employers and employees under the new law. Some of the more significant issues are summarized below.
Does a shelter-in-place order (like those in effect for many states) constitute a “quarantine or isolation” order for purposes of paid sick leave?
According to the DOL, the answer appears to be “no.” Questions 23 and 24 of the Q&A deal with situations where an employer closes a worksite (either before, on or after April 1, 2020). In either case, if the employer sends its employee(s) home “and stops paying them," those employees are not eligible for Paid Sick Leave or Expanded FMLA leave. Importantly, both questions state: “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.”
While the DOL did not specifically reference shelter-in-place orders or “stay home/stay safe” orders like the one issued by Governor Gretchen Whitmer on March 23, 2020, such orders likely constitute a State “directive.”
Nevertheless, until the DOL issues something more definitive on this point, employers who have closed or sent employees home (with or without pay) because of a shelter-in-place or “stay home/stay safe” directive or order should NOT count any paid time for the laid-off or furloughed employees as Paid Sick Leave or Expanded FMLA and should not count on being eligible for payroll tax credits for any pay they may provide to those individuals while they are off work due to the order or directive.
Lastly, because Governor Whitmer’s “stay home/stay safe” order allows certain “critical infrastructure” employees and employees necessary to perform “minimum basic operations” to stay on the job, those employees are not prevented from working. They would, however, still be entitled to Paid Sick Leave if, due to COVID-19, they have been advised to self-quarantine; they have symptoms and are seeking medical diagnosis; they are caring for an individual subject to a self-quarantine or isolation order or who has been advised by a health care provider to self-quarantine; to care for a child whose school or place of care is closed or whose care provider is unavailable; or for other reasons yet to be specified by the Secretary of Health and Human Services. In addition, these employees remain eligible for Expanded FMLA leave if they are caring for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 related reasons.
Note also that Questions 25 - 28 touch on situations where an employer closes or furloughs employees on or after April 1, 2020, or while an employee is taking Expanded FMLA leave or Paid Sick Leave.
Can an employer require an employee to provide documentation of their need for Paid Sick Leave?
Yes. Question 16 of the Q&A states that an employee “must provide to [their] employer documentation in support of the reasons for ... paid sick leave.” Such documentation could include a copy of any local quarantine or isolation order relating to COVID-19 or written documentation from a health care provider advising the employee or family member to self-quarantine. In addition, the DOL states that employees “must provide ... documentation in support of [their] expanded family and medical leave taken to care for [a] child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.” Interestingly, it appears that this documentation is required even though the employer may not request it.
Can an employee take Paid Sick Leave or Expanded FMLA Leave intermittently?
Question 20 of the Q&A states that intermittent leave is permitted for employees who are teleworking provided the employer agrees on such leave and the increments of leave.
However, according to Questions 21 and 22, employees working on site may only take intermittent Paid Sick Leave or Expanded FMLA leave to care for a child whose school or place of care is closed or whose care provider is unavailable because of COVID-19 related reasons, and provided the employer agrees to intermittent leave. For all other qualifying reasons under the Paid Sick Leave Act, employees must take leave in full, continuous days until the employee exhausts their leave or until the employee otherwise no longer qualifies for it.
The expanded Q&A document covers many other issues and we encourage you to review it. If you have questions about the material summarized above or any other issues surrounding the FFCRA, please contact any member of Warner’s Labor and Employment Practice Group. As a reminder, the Labor and Employment Practice group will also be hosting another webinar on the FFCRA on Tuesday, March 31, 2020, at 11:00 a.m. You can register here.