New DOL Guidance Issued on Emergency Paid Sick Leave and Emergency FMLA Leave During COVID-19

The US Department of Labor (DOL) issued additional frequently asked questions on March 27 to explain how the recently enacted Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act (Emergency FMLA) will work in various situations during the coronavirus (COVID-19) crisis.

USE OF PAID SICK LEAVE AND EMERGENCY FMLA LEAVE

The DOL FAQs aim to clarify how the 10 days of Emergency Paid Sick Leave for a specific set of COVID-19-related reasons and the 12 weeks of job-protected Emergency FMLA leave for a limited COVID-19 reason, recently enacted as part of the Families First Coronavirus Response Act, interact with an employer’s existing paid leave – specifically, sick time, paid time off (PTO), medical leave, or vacation provided by the employer.

If an employee needs short-term leave for a COVID-19 reason, the employee may choose to use the 10 days of the new Emergency Paid Sick Leave and choose not to use any of their existing employer-provided paid leave. In that case, the employee will receive funds up to the cap allowed under the law ($511/day for certain uses, and $200/day for others) and the employer will receive a tax credit for the amount expended on that leave.

For those employees who earn higher than the maximum caps set by the law, using the Emergency Paid Sick Leave days will not provide them with a full wage replacement. DOL makes clear that such employees may choose instead to use any available existing paid leave, so as to receive a fully paid sick day. The employer will not get a tax credit for the amount expended on such leave. If the employee subsequently requires additional time off for a COVID-19 reason, the employee may then use his or her ten Emergency Paid Sick Leave days. That leave will be capped at the maximum amount permitted under the law and the employer will receive a tax credit for the amount expended.

An employer and employee may mutually agree on a hybrid approach. If an employee wishes to conserve his or her employer-provided paid leave to the greatest extent possible, but would also like to be paid an entire base salary for a given sick day, the employee and employer may jointly agree that the employee will use an Emergency Paid Sick Leave day and also part of an existing sick day to “top off” the payment provided under that leave to allow full pay. For example, if an employee would receive only two-thirds of their normal earnings while on Emergency Paid Sick Leave, the employer may permit the employee to use the employer-provided leave to make up the additional one-third of earnings. The employer would receive a tax credit only for the costs of the Emergency Paid Sick Leave, capped as noted above.

The same rules apply to use of the Emergency FMLA Leave.

INTERMITTENT LEAVE

DOL’s FAQs clarify that the Emergency Paid Sick Leave days and the Emergency Paid FMLA may be used intermittently only with the agreement of the employer. However, DOL urges employers to be as collaborative and as flexible as possible in these circumstances.

For example:

• Employers may allow an employee to use Emergency Paid Sick Leave or Emergency Paid FMLA for several hours in a given day, while allowing the employee to telework during another portion of that same day. In such a case, the employee and employer must reach an agreement about an appropriate work schedule and the appropriate increments in which the paid leave will be used.
• Employers may allow an employee to use Emergency Paid Sick Leave or Emergency Paid FMLA for several hours in a given day, while allowing the employee to work at the worksite during another portion of the same day, but only if the paid leave is being used for a non-health-related reason, such as a school closure. Again, if the employer allows such intermittent leave, the employer and employee must reach a mutual agreement about an appropriate work schedule and the appropriate increments in which the paid leave will be used.

CERTIFICATIONS

The DOL FAQs clarify the type of documentation an employer may require to support an employee’s use of either Emergency Paid Sick Leave or Emergency Paid FMLA.

• An employee must provide the employer with documentation to show the reason the paid leave is needed, such as “a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising [the employee] to self-quarantine due to concerns related to COVID-19.”
• When an employee requests leave because of a school or daycare closure, the employee must provide documentation such as “notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider.”

FURLOUGHS AND SITE CLOSINGS

The DOL FAQs explain how site closures or furloughs impact employees’ entitlement to leave:

• If an employer closes a worksite before April 1, 2020, (the effective date of the two new laws), employees are not eligible for Emergency Paid Sick Leave days or Emergency FMLA. This is the case regardless of whether the employer closes the worksite for lack of business or because the employer is required to close the worksite in response to a government order.
• If an employer closes an employee’s worksite after April 1, 2020, but before the employee uses either Emergency Paid Sick Leave or Emergency FMLA, the employee is not eligible for either kind of leave.
• If an employer closes an employee’s worksite while the employee is using Emergency Paid Sick Leave or Emergency FMLA, the employer must pay the employee only for the amount of paid leave used before the worksite was closed. As of the date the worksite is closed, the employee is no longer entitled to such leave.
• If an employee’s worksite remains open, but an individual employee is furloughed on or after April 1, 2020, the employee is not eligible for either Emergency Paid Sick Leave or Emergency FMLA.
• If an employer closes an employee’s worksite temporarily on or after April 1, 2020, and tells employees the worksite will reopen at some point in the future, employees are still not entitled to leave while the worksite is closed.
• If an employer reduces an employee’s scheduled work hours, the employee may not use either Emergency Paid Sick Leave or Emergency FMLA for the hours the employee is no longer scheduled to work. However, the employee may use either type of leave during the hours that he or she is scheduled to work.

The Emergency Paid Sick Leave and Emergency FMLA are designed as payments for when an employee is on leave from work. If there is no work to go to, there is no entitlement to leave. As DOL notes, in those instances, employees may be entitled to payment from other government programs, such as Unemployment Insurance.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Princeton
Michelle Seldin Silverman