The Department of Labor (DOL) has provided questions and answers regarding the Families First Coronavirus Response Act
- An employer has had employees working remotely since mid-March. Several employees are now claiming they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though the employees have been working remotely with their children home for the last six weeks. Can the employer ask the employees why they are unable to work or if they investigated alternative childcare arrangements?
The employer can require employees to provide the reason he or she is taking leave, and submit a written or oral statement that the employee is unable to work because of this reason. The employer can ask the employee to note the change in circumstances in their statement, but the Department suggests being careful in doing so, in case it should increase the likelihood that any decision denying leave based on that information is a prohibited act. In its response, the Department of Labor indicates that the employee may not have been able to care effectively for the children while teleworking or, perhaps, the employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.
That said, the Department of Labor does provide that this does not prohibit an employer from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.
- I have an employee who wants to take paid sick leave or expanded family and medical leave, but they are receiving workers’ compensation. Is that permissible?
The employee cannot take paid sick leave or expanded family and medical leave unless they were able to return to light duty before taking leave. If an employee receives workers’ compensation or temporary disability benefits because they are unable to work, they may not take paid sick leave or expanded family and medical leave. However, if they were able to return to light duty and a qualifying reason prevents you from working, you may take paid sick leave or expanded family and medical leave, as the situation warrants.
- If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern.
- When is an employee eligible for paid sick leave to self-quarantine?
An employee is eligible for paid sick leave if a health care provider directs or advises the employee to stay home or otherwise self-quarantine because the health care provider beliefs that the individual may have COVID-19 or is particularly vulnerable to COVID-19, and quarantining based on the advice prevents the employee from working or teleworking.
- Can an employee take paid sick leave or expanded family and medical leave under the FFCRA if they are on an employer-approved leave of absence?
If the leave of absence is voluntary, the employee may end the leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from being able to work (or work remotely).
- Can an employee take paid leave or expanded family and medical leave intermittently while working from home?
If the employer allows it, an employee may take intermittent paid sick leave if they are unable to work from home (telework) their normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. Intermittent leave may be taken in any increment provided that the employee and employer agree.
- If an employee takes paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which they are entitled under State or local law, or their employer’s policy?
No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.
- If an employee claims to have tiredness of other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may an employer require from the employee to document efforts to obtain a diagnosis?
In order for an employee to take leave under the FFCRA, an employer may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment. The employer cannot require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.
- An employee took sick leave and now is taking expanded family and medical leave to care for her children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. Now the employee wants to take paid sick leave or expanded family and medical leave to care for her children because their school is closed for summer vacation. Does this qualify?
This is not a qualifying reason if the school or childcare provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.
- Can an employer round when computing the number of hours of paid sick leave they must provide an employee with an irregular schedule or, the number of hours to be paid the employee for each day of expanded family and medical leave taken?
It is common and acceptable for employers to round to the nearest tenth, quarter, or half hour when determining an employee’s hours worked. But if an employer chooses to round, they must use a consistent rounding principle. You may not, for instance, round for some employees who request leave but not others. For the purposes of computing hours under the FFCRA, you may round to the nearest time increment that you customarily use to track the employee’s hours worked. For instance, if you typically track work time in quarter-hour increments, you may round to the nearest quarter hour. But you may not round to the nearest quarter hour if you typically track time in tenth-of-an-hour increments.
As an example, the number of hours of paid sick leave for the first employee discussed in Question 81 is computed as 14 days times 1,200 hours divided by 183 calendar days, which is 91.803 hours. If you typically track time in half-hour increments, you would round to 92 hours. If you typically track time in quarter-hour increments, you would round to 91.75 hours. And if you typically track time in tenth-hour increments, you would to round to 91.8 hours.