The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, which provided emergency paid sick leave (EPSL) and expanded paid Family and Medical Leave (EFML) to certain covered workers impacted by the COVID-19 pandemic. On April 1, 2020, DOL issued regulations implementing the FFCRA and answering some questions related to coverage, eligibility, use, and job restoration. On September 11, 2020, the DOL issued revised regulations, which were effective on September 16, 2020.
In the amended rules, the DOL “reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave.” Therefore, if an employer closes an employee’s worksite or the employee is furloughed, he or she is ineligible for FFCRA leave even if otherwise impacted by a COVID-19-qualifying reason because the COVID-19-qualifying reason is not the but-for cause of his or her inability to work. The only modification the DOL made to the “work availability” requirement was to clarify that it applies to all FFCRA-qualifying reasons, not just a handful of them, thus correcting what it dismisses as a drafting oversight in the original.
The DOL also reaffirmed that intermittent FFCRA leave is available only with employer approval, but provided further context for its rationale:
- With respect to EPSL leave, the DOL reasons that employer consent is required for intermittent leave (and then only when the employee is teleworking and does not present a risk of contagion) because teleworking arrangements already require employer consent.
- With respect to EFML leave, the DOL did, however, provide some comfort to parents and caregivers whose children are headed back to school on a hybrid schedule, meaning their children attend school in-person on some days and continue distance learning on others. The DOL opined that employer approval is not required for employees to use time off in full-day increments on distance learning days. DOL reasoned that a set hybrid school attendance schedule is not, in fact, intermittent leave, but rather, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”
Finally, the FFCRA permits employers to require employees to follow reasonable notice procedures to continue to receive EPSL after the first workday of leave. The original DOL regulations required employees to provide documentation regarding the employee’s need to take FFCRA “prior to” taking EPSL or EFML, which was inconsistent with the FFCRA’s plain language permitting notice after a missed workday of leave. The regulations have amended to read that documentation may be given “as soon as practicable,” which in most cases will be when the employee provides notice of need for leave.
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