On March 28, 2020, the U.S. Department of Labor (DOL) released an updated guidance document on the implementation of the paid sick leave and expanded family and medical leave benefits in the Families First Coronavirus Response Act (FFCRA).
The updated DOL guidance document appears to suggest that employees who cannot work because their businesses are subject to a government shutdown order or they are ordered to shelter at home will not qualify for Emergency Paid Sick Leave or Emergency FMLA.
Last week, the DOL issued guidance that covered the effective date of the Act (April 1), how to calculate whether a business meets the 500-employee threshold, whether the law will be retroactive in nature, and how the emergency FMLA and emergency paid sick leave provisions should be applied in leave situations caused by school closures.
In the latest update, DOL covers several additional issues metalcasters will want to review to ensure compliance.
Which Employees are Excluded from Emergency Paid Leave?
The DOL’s guidance Q&A document notes that if employers send workers home and stop paying them, these workers are not entitled to paid sick leave or expanded family and medical leave if the “employer closes [the] worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.” This would be true whether the closure occurs before or after April 1, the effective date of the law, and even if workers requested leave prior to the closure.
Similarly, if an employer closes its business while workers are already out on emergency paid sick leave or emergency FMLA, it must still pay for any paid sick leave or expanded family and medical leave used before the closure, but it has no further obligation to provide emergency paid sick leave or emergency FMLA as of the date of the closure. The agency directs workers to determine whether they are eligible for unemployment insurance benefits, pointing them to their state workforce agency or unemployment insurance office for specific eligibility questions.
The DOL Q&A guidance also reminds workers that they will not be eligible for unemployment insurance if their employer is still paying them pursuant to a paid leave policy or state or local requirements.
Here are the specific Q&As noted in the document:
- If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?
No. If, prior to the FFCRA’s effective date, your employer sent you home and stopped paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. 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. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
- If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.
Intermittent Leave
As for intermittent leave for those workers able to work at a job site, this would depend on the reason the employee is taking the leave and whether the employer agrees. Emergency paid sick leave in non-telework situations must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because an employee:
- Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Once paid sick leave for one or more of these qualifying reasons begins in a non-teleworking situation, employees must continue to take paid sick leave each day until they either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because FFRCA’s intent is to provide such paid sick leave as necessary to keep you from spreading the virus to others.
However, if an employee and employer agree in non-telework situations, emergency paid sick leave can be taken intermittently to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons. Similarly, emergency FMLA can be available in such a situation with an employer’s permission and when an employer can agree upon such a schedule with a worker.
This DOL guidance adds to a growing list of compliance assistance materials published by DOL’s Wage and Hour Division (WHD), including the Fact Sheet for Employees, a Fact Sheet for Employers, as well as Questions and Answers about posting requirements, and a Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy. With the new law effective April 1, 2020, metalcasters should expect further revisions and clarifications as DOL – and employers – begin the process of implementing this unprecedented, new law. AFS will continue to provide additional information on this critical issue.
DOL Issues Coronavirus Emergency Leave Law Poster
The U.S. Department of Labor (DOL) issued a poster March 26 that the agency says will fulfill employers’ notice requirements under the emergency leave law passed in response to the new coronavirus pandemic.
The statute requires covered employers to post a notice of Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on their premises.