DOL Issues Additional Guidance On Emergency Paid Sick Leave & Emergency FMLA

The U.S. Department of Labor (“DOL”) expanded its “Frequently Asked Questions” regarding the Emergency Paid Sick Leave (“EPSL”) and Emergency Paid Family and Medical Leave Act (“E-FMLA”) pursuant to the Families First Coronavirus Response Act (the “Act”). While we continue to await regulations regarding these new requirements, the FAQs continue to provide additional insight into employers’ obligations for these new laws that become effective Wednesday, April 1, 2020.

Please refer to our prior E-Alert from March 26, 2020, for an overview of the Act and a discussion of the initial FAQs released by the DOL.

Documentation

Recordkeeping is key for employers who intend to claim a tax credit under the Act. In order to claim credit, employers must require an employee taking EPSL to provide appropriate documentation in support of the reason for leave. This documentation must include: the employee’s name, the qualifying reason for requesting leave, a statement that the employee is unable to work or telework due to that qualifying reason, and the date(s) for which the leave is requested. There must also be documentation supporting the reason for the leave, such as a federal, state or local quarantine or isolation order that applies to the employee or a note from a health care provider indicating that an employee must self-quarantine due to COVID-19 related concerns.

Similarly, employers must require employees who take ESPL or E-FMLA to care for a child whose school is closed, or whose child care provider is unavailable, due to COVID-19, to provide supporting documentation. This documentation may include a notice of closure on a school or child care center website or in a newspaper.

Employers must retain this documentation, as it may be required to substantiate an application for tax credit.

Who is “Unable to Work”?

An employee is unable to work under the Act if an employer has work available for the employee, including telework, and the employee is unable to perform that work for one of the COVID-19 qualifying reasons set forth in the Act.

Lay Offs, Furloughs and Business Closures

If a business closes prior to April 1, 2020, employees cannot collect paid sick leave under the Act. In addition, employees who are furloughed, placed on a leave of absence, or laid-off due to the business not having sufficient work, are not eligible for paid sick leave under the Act. If a business closes after April 1, 2020, employees who were on a paid leave under the Act will cease being eligible for further paid leave under the Act as of the date the business closes. Employers should direct employees who have been laid-off, placed on an unpaid leave or furloughed to the California Employment Development Department where they can apply for unemployment benefits.

Effect of Leave on Group Health Benefits

Employers must continue to provide group health coverage to employees who are on paid leave under the Act on the same terms as if they continued to work. Employers can require that employees on leave continue to make their normal contributions towards their group health benefits. If an employee does not return to work at the conclusion of his or her leave under the Act, eligible employers may trigger COBRA in accordance with company policies.

Concurrent and Supplemental Leave Benefits

Employees who are eligible to take EPSL or E-FMLA cannot use other paid leave benefits concurrently with the EPSL/E-FMLA benefits, unless the employer agrees to allow it. Similarly, employers cannot require employees to supplement their EPSL/E-FMLA leave with pre-existing sick leave benefits, accrued paid vacation, or other paid time off. Tax credits are provided to employers only for providing payments required by EPSL and E-FMLA, and not for any other benefits employees may use to supplement their absences, such as vacation, pre-existing sick leave or paid time off.

Intermittent Leave

Teleworking Employees who are unable to work their normal work hours due to one of the qualifying reasons can take intermittent EPSL if the employee and employer agree to it. Employees who are prevented from teleworking their normal work schedule because they are needed to care for their children whose school or place of care is closed or unavailable because of COVID-19 related reasons can take E-FMLA intermittently if the employees and their employers agree to it.

Employees who are not teleworking and are taking EPSL cannot take leave intermittently if they are taking EPSL because they: (1) are subject to a quarantine or isolation order related to COVID-19; (2) were advised by a health care provider to self-quarantine due to COVID-19; (3) are experiencing symptoms of COVID-19 and seeking medical diagnosis; (4) are caring for someone subject to a quarantine or isolation order due to COVID-19 concerns; or (5) are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

If the paid leave is not exhausted when an employee no longer has a qualifying reason for taking leave, the employee may take the remaining leave at a later time, until December 31, 2020, provided the employee has another qualifying reason.

Interaction Between EPSL, E-FMLA and FMLA

Eligible employees are entitled to EPSL regardless of how much leave they have available under the FMLA. However, E-FMLA does not extend the total number of workweeks an employee is eligible for under the FMLA. Eligible employees may take a total of 12 workweeks for FMLA or E-FMLA reasons during a 12 month period set by the employer. Therefore, if an employee already has exhausted her 12 weeks of FMLA during this 12-month period, the employee is not eligible for additional E-FMLA leave. If, however, an employee has taken only two weeks of the 12 weeks of FMLA prior to April 1, 2020, then the employee would have ten weeks remaining of E-FMLA or FMLA leave.

Job Protection While On Leave

Employees who take EPSL or E-FMLA generally have a right to return to their same or nearly equivalent job following their leave. However, employees on leave are not protected from employment actions that would have taken place regardless of their leave. This includes layoffs for legitimate business reasons, such as a worksite closure.

Small Business Exemption

Businesses with fewer than 50 employees may be exempt from providing EPSL or E-FMLA leave related to school closure or child care unavailability if providing the leave would jeopardize the viability of the business. To reach this conclusion, an authorized officer of the business must determine that: (1) the EPSL or E-FMLA leave would result in the business’ expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity; (2) the absence of the employee requesting EPSL or E-FMLA leave would result in a substantial risk to the financial health or operation of the business because of the employee’s specialized skills, knowledge of the business or responsibilities; or (3) there are not enough workers who are qualified, willing, able, and available to perform the labor or services necessary for the business to operate provided by the employee requesting a leave.

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Additional guidance about these new leave laws is available from the DOL’s Families First Coronavirus Response Act: Questions and Answers. We expect the DOL to issue regulations regarding EPSL and E-FMLA in April. As you can see, employer obligations are complex and constantly evolving at this time. Contact your SSFS&W attorney if you have any questions relating to the Act or any other workplace challenges associated with the COVID-19 pandemic.

Millicent N. Sanchez ext. 8203 msanchez@swerdlowlaw.com
Janet I. Swerdlow ext. 8202 jswerdlow@swerdlowlaw.com
David A. Wimmer ext. 8201 dwimmer@swerdlowlaw.com
Emily G. Camastra ext. 8213 ecamastra@swerdlowlaw.com
Meghan E. O’Kane ext. 8204 mokane@swerdlowlaw.com
Lori M. Yankelevits ext. 8205 lyankelevits@swerdlowlaw.com
Karen E. Rhodes ext. 8206 krhodes@swerdlowlaw.com
Allison Musante ext. 8207 amusante@swerdlowlaw.com

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