DOL Issues Additional Guidance on Families First Coronavirus Response Act

Over the last several days, federal officials have issued additional guidance on how to comply with the Families First Coronavirus Response Act (FFCRA).

The U.S. Department of Labor (DOL) updated its guidance for employers and employees regarding the rights and responsibilities under the FFCRA. In addition, the Equal Employment Opportunity Commission (EEOC) held a webinar addressing questions related to COVID-19 in relation to the federal nondiscrimination laws they enforce.

Below are some common questions and highlights from the DOL guidance. For a breakdown of the FFCRA and requirements for employers, check out a previous Employment Law News blog.

DOL Guidance on the FFCRA

What does it mean to be unable to work or telework for COVID-19 related reasons?

An employee is unable to work if their employer has work for you and one of the COVID-19-qualifying reasons set forth in the FFCRA prevents the individual from being able to perform that work, either under normal circumstances at the employee’s normal worksite or via telework.

Related: Colorado, New York Combat Coronavirus with Emergency Paid Sick Leave

If the employee and employer agree the employee will work their normal number of hours but outside the employee’s normally scheduled hours (for example, early morning or later in the evening), then the employee is able to work and leave is not necessary unless a COVID-19-qualifying reason prevents the employee from working that schedule.

If an employee becomes unable to telework, is the employee entitled to paid sick leave or expanded family and medical leave?

If an employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take paid sick leave.

Similarly, if the employee is unable to perform the teleworking tasks or work the required hours because the employee needs to care for a son or daughter whose school or childcare is closed — or the childcare provider is unavailable due to COVID-19 reasons — then the employee is entitled to take expanded family and medical leave.

Keep in mind though, that to the extent the employee is able to telework while caring for a son or daughter, paid sick leave and expanded family and medical leave is not available.

If an employer closes a worksite on or after April 1 (effective date of FFCRA), but before the employee goes out on leave, may the employee still receive paid sick leave or expanded family medical leave?

No. If an employer closes a workplace after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not be eligible for paid sick leave or expanded family and medical leave.

However, the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it was required to close pursuant to a federal, state or local directive. Employees should contact their state workforce agency or state unemployment insurance office for specific questions about eligibility. Find additional information online.

May an employer require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave the employee may have under the employer’s paid leave policy?

No. Under FFCRA, only the employee may decide whether to use existing paid time off provided by their employer to supplement the amount the employee receives from paid sick leave or expanded family and medical leave.  The employee would have to agree to use existing paid leave under the employer’s policy to supplement or adjust the paid leave provided under FFCRA.

Highlights from the EEOC Webinar

Can an employer ask an employee in the office if the employee has family members with COVID-19?

A better question to ask employees still reporting to workplaces is whether the employee has had contact with anyone who has COVID-19 or its symptoms.

Can a manager share the identity of an employee with COVID-19?

Yes, but only on a limited need-to-know basis. This should be reviewed and handled carefully.

What if an employee at the workplace refuses to allow the employer to take his/her temperature during the coronavirus pandemic?

An employer who has implemented precautionary measures such as taking employee’s temperatures prior to their shift may bar an employee from the workplace if they refuse to have their temperature taken.

Can an employer exclude only older employees from the workplace based on guidance from the Centers for Disease Control and Prevention?

No, doing so would be a violation under the Age Discrimination in Employment Act.

Conclusion

As employers wrestle with the specifics of the FFCRA, additional questions may arise as the law is implemented.

Also, companies should keep an eye on local paid sick leave laws that may have been expanded to include coronavirus-related issues. The day-to-day nature of how the nation is dealing with COVID-19 means employers should review laws where they have locations to ensure compliance.

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