By Alexis Preskar & Rob Gilmore
The Department of Labor (DOL) has updated its guidance on the Families First Coronavirus Response Act (FFCRA). See our post on the DOL’s initial guidance here.
When Employees Are NOT Entitled to Leave
- If employees are laid off before April 1
- If employees are furloughed after April 1
- If employers close on or after April 1 and an employee has not yet taken leave
- If an employee is out on leave and an employer closes, the employer must pay for the leave the employee has used, but does not have to pay for additional leave
- If an employer reduces an employee’s hours because of a lack of work, FFCRA leave cannot be used for the hours the employee lost
Using FFCRA and Other Benefits at the Same Time
- Employees cannot use FFCRA leave and unemployment concurrently, however, partial unemployment may be available for reduced hours or pay
- Employees can use FFCRA leave and their employer-provided health coverage concurrently
- Employees cannot use FFCRA leave and an employer’s internal leave policy concurrently unless the employer agrees, and employers cannot force an employee to supplement internal leave with FFCRA leave.
Taking Intermittent Leave
- Employers and employees can agree to intermittent leave if the employee is working remotely. For example, an employee could take an hour of leave during the day to care for a child home from school because of COVID.
- Employees cannot take intermittent leave if they are not working remotely and are on leave because:
- They are subject to a federal, state or local quarantine or isolation order;
- They have been advised by a health care provider to self-quarantine;
- They are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- They are caring for an individual who either is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine.
- If an employee takes leave for one of the above reasons, they must take the leave until it is exhausted or until the above conditions do not apply.
- Employees can receive 80 hours maximum between April 1 and Dec. 31. Meaning they cannot use 80 hours for one reason and then receive additional time if a second reason arises. However, an employee can have multiple leaves that qualify up to a total of 80 hours, subject to the intermittent rules.
Documents Needed From Employers and Employees
- Employees must provide an explanation of why they are requesting leave and how they qualify
- Employers may request additional information if the employee is caring for a child
- To claim a tax credit for providing FFCRA leave, employers must provide the employee-submitted documents to substantiate the leave
Finally, the DOL clarified that in order for an employee to be “unable to work,” an employer must have work for the employee to do AND the employee is under one of the COVID-19 qualifying reasons (the employee has COVID-19, is under quarantine, is caring for a child or other suffering from COVID-19, under quarantine, or who needs assistance because of COVID-related closures), such that the employee cannot work (remotely or not).
If you have questions about employment law in the age of COVID-19, please reach out to Rob Gilmore at email@example.com or 216. 736.7240, Alexis Preskar at firstname.lastname@example.org or 614.427.5748, or any of our Labor & Employment professionals.