We have summarized some important points below:
- Employees are only entitled to paid sick leave and/or Emergency FMLA when they are actively employed. Therefore, if an employer furloughs employees because there is not enough work or they temporarily close their business, employees are not entitled to paid sick leave and/or Emergency FMLA.
- Employees may take paid sick leave and/or Emergency FMLA intermittently only if the employer allows it and if the employee is teleworking, or their reason for taking leave is because they are caring for a child whose school is closed or child care provider is unavailable.
- Employees working at their usual worksite may not take paid sick leave intermittently if they are subject to a quarantine or isolation order or recommendation or caring for someone who is subject to such an order; if they are experiencing symptoms of COVID-19 and seeking a medical diagnosis; or they are experiencing substantially similarly conditions.
- Employers may permit employees to use existing paid leave to supplement the amount they receive for FFRCA paid sick leave or Emergency FMLA, but are not permitted to require employees to do so.
- Employers should ask employees for appropriate documentation in support of the reason for their leave and retain such documentation if the employer intends to claim tax credits for leave payments. The documentation should include the employee’s name, qualifying reason for requesting leave, a statement that the employee in unable to work/telework for that reason and the date(s) for which leave is requested. Documentation of the reason for the leave is necessary and may include, for example, a quarantine/isolation order, written documentation by a health care provider, or an email/notice from the child’s school or child care provider announcing its closure.
Additionally, The USDOL also announced that the FFCRA will become effective April 1, 2020. Previously, it was reported that the FFCRA would not be effective until April 2, 2020.
As promised, the USDOL has released the Notice for posting required under the FFCRA. Employers are required to post the Notice conspicuously in the workplace. Given the current circumstances and the fact that many employees are not actually in the workplace, employers may satisfy their posting obligation by emailing or directly mailing the notice to the employees, as well as posting it to a Company intranet website. Employers may access the Notice at this link:
Fortunately, the USDOL has announced that it will observe a temporary period of non-enforcement of the FFCRA until April 17, 2020, provided employers make reasonable, good faith efforts to comply with the FFCRA. An employer is considered to have acted “reasonably” and “in good faith” if: (1) the employer remedies any violations, (2) its violations were not “willful,” and (3) the USDOL receives a written commitment from the employer to comply with the FFCRA in the future.
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If you have questions or would like additional information, please contact EGS’s Employment Law Practice Group Leader, Amanda M. Fugazy at
afugazy@egsllp.com
or the primary EGS attorney with whom you work.
