Labor Dept. Expands Guidance On COVID-19 Paid Leave Law

By Vin Gurrieri
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Law360 (March 27, 2020, 8:30 PM EDT) -- The U.S. Department of Labor on Friday updated guidance it issued earlier this week designed to help American businesses and their employees familiarize themselves with the details of the new emergency sick leave law that was enacted in response to the novel coronavirus pandemic. 

The latest guidance by the DOL significantly expands a Q&A document issued Tuesday that was meant to answer key questions about the Families First Coronavirus Response Act, which President Donald Trump signed into law March 18. The law takes effect April 1 and will remain in place until the end of the year. 

The new items touched on what the DOL called "critical issues" involving the FFCRA, including the application of so-called intermittent leave when workers take leave for short periods of time, and how the law applies to businesses that are forced to shutter amid the COVID-19 pandemic. 

"The Wage and Hour Division is delivering necessary information so that American workers and employers can receive this much-needed relief," Cheryl Stanton, administrator of the DOL's Wage and Hour Division, said Friday. "We are working to ensure that workers and employers have the tools they need to maximize the benefits they are entitled to when this law goes into effect on April 1, 2020." 

To help millions of Americans weather the economic storm brought on by the virus, the Families First Act requires businesses with fewer than 500 workers to provide emergency short- and long-term paid leave. 

The law provides two weeks of time off at full pay to workers who can't work for various reasons connected to the virus, such as being quarantined. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

Additionally, employers must pay employees at their full wage if they are taking time off for themselves or two-thirds of their regular pay if they have to care for a family member, up to certain caps. The bill also amends the Family and Medical Leave Act to give workers long-term paid time off at partial pay if they can't work because their child's school has closed. Employers covered by the law can seek reimbursement of any qualifying wages they pay under the FFCRA through tax credits. 

In its initial batch of guidance Tuesday, the DOL touched on numerous issues that included which categories of workers could be counted toward the 500-worker threshold. 

Friday's updated version tackled new topics that businesses and employees might have questions about. Among them were several questions about how the FFCRA will incorporate the concept of intermittent leave, which has long been among the most vexing issues for employers to handle when it has arisen in the context of the FMLA.

In one entry, the DOL said employees are allowed under the new law to take intermittent paid leave under the FFCRA when they are teleworking if they meet the law's criteria to qualify for it and their employer agrees to a particular arrangement. 

In practice, that means workers with their employer's blessing can telework until noon, take intermittent paid leave for two hours, and then go back to teleworking, according to the framework outlined by the DOL. 

However, the agency said if a worker has to physically report to work, his or her ability to take intermittent paid sick leave under the new law will be more restricted since the concept behind it is to keep people who can't work for COVID-19-related reasons away from others.

So, if people are quarantined because of COVID-19, are experiencing symptoms of the disease or are caring for someone who is suspected to be infected, intermittent paid sick leave won't be an option, the agency said. 

"Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave," the agency said in one of its Q&A entries.

It also said employees who can't telework can take intermittent leave under the new law to take care of kids whose schools or child care facilities were forced closed because of COVID-19 — such as working only Tuesdays and Thursdays — just as long as their employer agrees to an arrangement. 

Elsewhere in Friday's updated guidance, the DOL said workers won't be able to avail themselves of any of the leave options made available in the Families First Act during any time period in which their employers are closed, whether it's shuttered for lack of business or because of an order by public officials. But workers who find themselves in those situations can potentially claim unemployment benefits, according to the DOL. 

If a business remains open but furloughs workers, those individuals similarly won't be entitled to leave under the FFCRA but can seek unemployment, according to the DOL's new guidance.

Friday's Q&A update comes a day after the DOL released another FFCRA-related guidance that included notices that employers must post laying out the various triggers for paid sick and leave time, the amount of time workers can take off and the amount they'll be paid while off work. The agency also sent a memo to field staff that laid out a nonenforcement policy for employers that unwittingly break the law that will remain in place until April 17.

--Additional reporting by Braden Campbell. Editing by Stephen Berg.

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